–> By Florian Wehner – Published on 5. December 2021 – Last updated on 16. September 2021
Category: Labor law, Working time
Whether in hospitals, laundries or factory halls – in many companies, employees must wear work clothes. When changing clothes at the workplace before and after the actual working time, employees need to know whether the time needed for this also counts as working time and whether they can claim a separate payment for it.
Under which conditions this is the case, you can read in the following article.
1. The concept of working time
The concept of "working time" is not standardized by law and is therefore not clearly regulated.
In contrast, the Works Constitution Act defines working time as the time during which the employer can require work to be performed. This time is determined with the participation of the works council (§ 87 para. 1 no. 2 and no. 3 BetrVG). In addition, the working time directives on the organization of working time under EU law must be observed.
None of the aforementioned regulations contains an explicit provision for changing times or their remuneration.
The aforementioned regulations on working time are primarily concerned with the protection of employees and the question of which times fall under this occupational protection and which do not. However, the times recorded hereunder need not be identical with working time in the sense of remuneration law. In a decision from 2012 (more on this later), the BAG states that the qualification of a certain period of time as working time does not necessarily lead to an obligation to pay, while conversely the exclusion of certain times from working time does not necessarily exclude the obligation to pay.
When we talk about "working time" in the following article, we are talking about the working time under remuneration law, i.e. the work for which the employee can demand payment.
2. Moving when ordered by the employer
It may be regulated in an employment contract, a works agreement or a collective bargaining agreement whether and under what conditions changing times count as working time and are to be remunerated. In the absence of such a provision, the question arises as to the circumstances under which moving is considered to be paid working time.
First of all, a distinction must be made according to whether or not the employer has expressly ordered the changing of clothes on the job.
If the employer prescribes
- specific clothing is to be worn, and
- changing must also take place in the company (so that private use is excluded anyway),
Changing times always belong to remunerated working time.
The Federal Labor Court (BAG, ruling dated 19.09.2012, Az. 5 AZR 678/11) clarified in the following case:
The underlying case involved a nurse who worked in the operating room of a hospital. When the employer no longer wanted to pay for the changing times of about 30 minutes daily – and changed a service agreement – she went to court.
The Federal Labor Court ruled that the amendment to the service agreement was unlawful. Because the employer had ordered the dressing and undressing of the work clothes on site. In addition, the wearing of professional and area clothing in the operating area primarily serves hygienic purposes and thus operational concerns of the employer. Accordingly, the clothing must be put on at a changing place provided for this purpose. Therefore, the moving times in this case were to be regarded as working time with entitlement to remuneration.
3. Changing times without an order from the employer
But what applies if there is no specific order from the employer to change clothes?? In the absence of an explicit regulation, disputes often arise with employers who do not want to recognize and pay changing times as working times.
Therefore, the Federal Labor Court (BAG) has had to make a number of decisions on this matter over the course of the last few years and – in order to be able to differentiate more precisely in the delimitation in individual cases – for the classification as working time with entitlement to remuneration the Criterion of third-party benefit developed.
If an activity of the employee exclusively for the benefit of others, it counts as working time subject to remuneration. Changing room time is exclusively for the benefit of others if it serves a need of another – that of the employer – and does not at the same time fulfill a need of the employee’s own.
Thus, two prerequisites must exist for this:
- the wearing of work clothes is prescribed by the employer, and
- private use of the clothing is excluded.
Accordingly, various case constellations are conceivable (in this regard, in detail BAG, ruling of 6.9.2017, 5 AZR 382/16, para. 13):
Unobtrusive work clothes
In the case of work clothing that is not particularly conspicuous, it does not matter whether the employee changes at home or only at work. because the work clothes can already be worn on the way to the workplace. Thus, the employee can decide for himself when to change clothes.
Conspicuous work clothing is put on at home
According to the BAG, there is also no exclusive third-party use if the employee is allowed to wear particularly conspicuous work clothing outside of working hours and decides not to put it on or take it off at work. Then changing clothes outside the company serves not only a foreign need, but also the need of the employee himself: Either because he does not have to use his own clothes on the way to work, or because he decides self-determinedly against putting on and taking off his work clothes at work.
Conspicuous work clothing is put on in the company
On the other hand, employees cannot be obliged to wear prescribed, particularly conspicuous work clothing on the way to work.
- Service clothing with a conspicuous logo
- high-visibility clothing with conspicuous colors, as in road construction
- Police uniform
- Professional clothing of a paramedic
According to the BAG, however, work clothing that is exclusively in the color "white", z. B. of a nurse, conspicuous in this sense. In the public street scene, white clothing typically indicates that the wearer belongs to a medical or related auxiliary profession.
Employees have no objectively ascertainable interest of their own in disclosing to third parties the professional activity they perform outside their working hours. The necessity of putting on and taking off the work clothes and the associated expenditure of time by the employee is based solely on the employer’s instruction to wear these clothes during working hours.
And so it happens that employees do not want to wear the conspicuous work clothing outside of work and only put it on and take it off at work.
The employer then owes the employee remuneration for the time spent on the job.
However, this does not apply if the employee puts on his work uniform at home, even though the employer provides changing rooms in the company. This applies even if the employee first has to apply for a changing facility to be made available to him. In this case, the time spent changing clothes at home does not have to be remunerated as working time.
4. Concrete remuneration for changing times
The obligation to pay may also be governed by rules or regulations that deviate from the general remuneration. Classifications apply.
- Thus, the employment contract or collective bargaining agreement may specifically stipulate which times are included in the working time subject to remuneration. For example, in collective bargaining law for the public sector, the so-called "regular working time" is the basis for the obligation to pay (6 TVoD/TVL).
- The obligation to pay for changing times can also be completely excluded by labor and collective agreements, even if putting on and taking off work clothes is generally considered to be work in individual cases. This is because it is permissible to make a separate remuneration arrangement by contract for an activity other than the actual activity and thus also for changing times (cf. BAG, ruling dated 25.04.2018, 5 AZR 245/17).
- Finally, different remunerations can be determined depending on the working time (example: on-call duty).
- If changing clothes as a result of an instruction from the employer is one of the activities to which the employee is obligated under the employment contract (§ 611 para. 1 BGB), then the employer is obliged to pay remuneration for these services, which are considered to be work.
- In addition, it should be noted: If, because of the prescribed changing of clothes in the company, routes have to be taken within the company, these travel times shall also be deemed to be working time subject to remuneration.
The following applies to changing and commuting times within the company, which are part of the working time with entitlement to remuneration: Without a separate agreement on the remuneration of these times, the employer must pay what he has agreed to pay for the activities of the employee as remuneration in accordance with Section 612 of the German Civil Code (BGB). Thus, compensation for locker room time is then based on the agreed-upon work rate.
Example – changing time on standby duty
Standby duty counts as working time under labor protection and collective bargaining law. However, different remuneration rates may be determined, so that on-call time may be remunerated differently from full time work. For example, on-call duty, which is less labor-intensive, is often remunerated at a lower rate than full working hours.
Therefore, if z. B. If an employee is paid less for on-call time under a collective bargaining agreement, the question must then also be asked for the time spent changing clothes: Was this done as part of fulltime work or as part of on-call duty?? In the latter case, only the lower remuneration is due for the changing times.
5. Evidence of relocation time and arrangements in case of dispute
In order to be able to claim compensation in the event of a dispute, the Employee The employee must provide evidence of the time spent changing clothes and travelling to and from work. Thus, he bears the burden of proving the time required for changing clothes and any travel between the changing room and the work site. If the employee is unable to demonstrate and prove this, the required times are estimated by the court (BAG, judgment dated 26.10.2016, 5 AZR 168/16).
For the Employer in practice, the question often arises as to whether and in what form the rules on changing clothes need to be explained to employees. It is recommended to set this down as clearly as possible in a written agreement. This makes it easier for the employer to take action against employees who do not comply with this rule in the event of a dispute. For example, especially in the health sector, it may be mandatory for hygienic reasons to put on and wash work clothes on site in order to exclude health hazards.
In addition, unclear regulations can lead to the employer being found liable for remuneration in the event of a dispute. The Saxon State Labor Court has issued an interesting ruling on this issue.
A paramedic did not put on and take off his work clothes provided by the employer at home. Rather, he did this in the rescue control center before and after the respective shifts. That the employer expected this of him, in his opinion, resulted from a quality management manual. In this it was noted that he should neither appear with work clothes already put on at home nor take them off at home. But when he demanded compensation for the time spent moving, the employer refused. He invoked the fact that he did not explicitly order the moving in the company.
The Saxon state labor court ruled in a decision on 10.12.2014 (Az. 2 Sa 424/14) that the time spent changing work clothes here is also working time that is subject to remuneration. The contents of the quality management manual are sufficient proof. Because these specifications have the de facto consequence that the donning and doffing of professional clothing takes place at the workplace. Accordingly, the employer must additionally remunerate the moving times.
This decision of the Saxon Regional Labor Court is plausible. From the employee’s point of view, it makes no difference whether changing clothes at the workplace is done on the basis of an explicit order or on the basis of an expectation placed upon him or her. However, the verdict is not yet legally binding. In their ruling, the judges allowed an appeal, which the employer made use of. The case is currently pending before the Federal Labor Court under the case number 5 AZR 95/15.