"Money for Nothing?"



Even if an employment contract omits express mention of working hours, an employer can regularly expect employees to work during an undertaking’s usual working hours [Federal Labour Court judgment of 15 May 2013, 10 AZR 325/12].


The plaintiff was employed by the defendant as a “salaried employee” (i.e. not covered by a pay award) with an annual salary of € 95,000.00. The written employment contract contained no express understanding as regards working hours. The only stipulation in this regard was one to the effect that the employee also had to work “outside normal working hours” if necessary. Flexitime accounts based on a normal work week of 38 hours were kept for the defendant's employees. After the plaintiff had accrued a negative balance of approximately 700 hours, the employer requested that she at least adhere to the normal 38-hour work week. The plaintiff was, however, of the opinion that – in the absence of any understanding to the contrary – she was not bound to any specific working time. She argued that she only had to complete the work assigned to her, regardless of how much time it took. After the plaintiff worked 19.8 and 5.5 hours respectively in two consecutive months, the defendant reduced the plaintiff’s monthly salary payments accordingly. The plaintiff brought an action for payment of the difference and at the same time petitioned the court to rule that she was under no obligation to work 38 hours per week in the future.


Like the lower courts, the Federal Labour Court dismissed the action and instructed the plaintiff that her employment contract could be reasonably construed to require her to be at work during the company's normal working hours. The court opined that working time need not necessarily be expressly defined in the form of a concrete agreement if the contract otherwise contains nothing to indicate any exception to normal working hours. The lower courts had found that “company working hours are in principle considered to have been agreed” in the absence of any express understanding to the contrary. Finally, the courts stated that any employee would be sufficiently aware of the fact that an employment contract entails an obligation to perform work and not an obligation to produce results regardless of the time invested. Since the plaintiff had failed to fulfil her obligations as an employee, her employer was justified in reducing her compensation accordingly.


Careless contract drafting came together with a good portion of chutzpa here, and these ingredients combined to create a curious situation, but one that was ultimately properly assessed by all instances. With welcome clarity, the court of first instance, the Düsseldorf Higher Labour Court, had already found that employees cannot reasonably assume that they will be paid for doing nothing in the absence of a concrete agreement governing working time. Although the employer did in this case ultimately not suffer any serious repercussions, employment contracts should be formulated to avoid such pitfalls due to carelessness. In any case, the Notification Act (Nachweisgesetz – NachwG) requires that employers define working time in the form of a written employment contract or – if no agreement is made in writing – notify the employee of the working time in writing.


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