Working from home – What is changing, what is staying the same?

 From labor law to cyber security – the legal pitfalls of mobile and hybrid working.

Working from home – What is changing, what is staying?

Many companies and their employees have learned to appreciate the benefits of working from home during the lockdown period. As a consequence, companies are increasingly considering how to enable options for hybrid working. What are the key legal issues when employees work both at the office, and also remotely?

There are a variety of advantages when not every employee comes into the office every day: This begins with climate protection resulting from less traffic, to savings on fuel costs, along with a better work-life balance for employees, in addition to lower office rental costs and more satisfied employees.

Yet, at the same time, the Corona pandemic has also revealed certain disadvantages, such as the lack of contact with colleagues, as well as meetings and conversations often only taking place when appointments are specifically arranged. However, the increased danger of hacker attacks has created the greatest need for action. Estimates by the German Economic Institute based on a Survey by the Bitkom digital association indicate that German companies suffered damages amounting to more than €52 billion as a consequence of cyber attacks on employees working remotely last year. The following checklist provides HR managers with an overview of the most important legal pitfalls arising from mobile and hybrid working:

  1. Protecting data and business secrets
    The Business Secrets Act stipulates that companies must implement appropriate measures to protect their knowledge, and be able to provide proof of these measures. Otherwise, claims for damages cannot be asserted if a cyber attack occurs. It is important to remember that data protection regulations, specifically the GDPR, also apply when working remotely. Employers remain responsible for ensuring that these regulations are complied with.
    In addition to appropriate technical and organizational measures to protect both data and secrecy, such as encryption systems or password regulations, companies also need to conclude written agreements governing the security precautions with their employees. It is important to conclude agreements stating that third parties do not have access to company devices, and that data may not be stored on private devices. In this context, we also recommend creating guidelines regulating data and secrecy protection within the company.
  2. Making contractual agreements covering mobile or hybrid working
    If the company has not yet implemented regulations governing remote work in its employment contracts, a collective agreement or a company agreement, HR managers are now confronted with the issue of whether they can order employees to return to the office or the company following the end of mandatory remote work. As we have already reported, employees are not fundamentally entitled to work from home or remotely. This is also indicated in a decision by the Ulm Labor Court in an injunction (Ref. 1 Ca 1/21). In accordance with their right to issue instructions pursuant to Section 106 sentence 1 Trade, Commerce and Industry Regulation Act, employers have a general right to change the place of work if operational reasons arise that argue against remote work. According to the Munich State Labor Court, this applies if, for example, the technical equipment in the employee’s home office does not match office standards. In this specific case, the employee had also failed to demonstrate that the data was protected against access by third parties and his wife who works for a competitor (Decision dated August 26, 2021, Ref. 3 SaGa 13/21).
    The decision by the Munich Labor Court from August 27, 2021 regarding remote work abroad is also based on the employer’s right to issue instructions. According to this decision, an employee was not entitled to her employer’s approval for four weeks of continuous remote work while she was with her partner in Switzerland.
    To prevent these disputes from being taken to court, and to ensure that the regulations are legally secure, HR managers need to include a clause governing mobile or hybrid work in employment contracts. In the case of existing employment contracts, we recommend concluding suitable supplementary agreements.
  3. A company agreement is not adequate
    If companies have a works council, we also recommend concluding a works agreement regarding mobile or hybrid working. According to the new co-determination conditions outlined in § Section 87 (1) No. 14 Works Constitution Act the works council can even demand this in view of how remote working is carried out, for example to regulate working time, availability of employees, and technical equipment.
    Pioneers are already moving away from specific percentages and hourly targets for remote work and an attendance culture, and are instead increasingly focusing on a culture of results combined with trust-based working hours. This even applies to the hierarchy below managing directors and senior department heads. Given the sheer scope of the issues that need to be addressed, a company agreement alone is inadequate, and the terms need to be set forth specifically in employment contracts.
  4. Working hours plus occupational health and safety laws also apply for remote work
    Despite the trend toward greater freedom when organizing working hours and working locations, the laws regarding working hours along with occupational health and safety still apply. Therefore, the maximum working hours have to be observed, the working hours recorded and measures in compliance with the Ordinance on Workplaces need to be taken to prevent back problems or muscular tension, for example.

Only employers are entitled to determine whether employees work from home or even from abroad. In conclusion, preventing conflicts from the outset, and providing clear and legally sound regulations regarding mobile or hybrid working via company agreements and employment contracts is more beneficial for the working atmosphere at the company.