Working time fraud: When is a warning or termination legal in Germany?

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In Germany, whether consciously or not, if an employee submits incorrect working hours, they is committing working time fraud. 

Working time fraud: This normally leads to a warning or dismissal. Those affected can defend themselves against an unfounded allegation with a written objection or a lawsuit.

Working time fraud

Understanding working time fraud in Germany

  • If employees report work not performed as working time, they are committing working time fraud.
  • This is could include wrong hourly billing or manipulation of the time clock.
  • The accusation is not justified in the case of short drinking, toilet or smoking breaks.
  • The incorrect specification of working hours justifies a warning, termination or criminal complaint. Officials are threatened with disciplinary proceedings.
  • Employees can object to a warning or dismissal if they make an unfounded allegation, or they can file a lawsuit to obtain reinstatement.
  • A lawyer can refute the allegations with solid evidence and counter-arguments – both with the employer and in court.

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What is working time fraud?

The contractual relationship between employer and employee is one of trust. If this is clouded by working time fraud, there are consequences according to § 626 Para. 1 BGB .

Employees commit working time fraud if they state the hours they have not worked – and this from the very first minute. Such scams range from accidentally not clocking out a smoke break to years of overtime overclocking.

When does working time fraud occur?

  • Completion of private activities during working hours: If you do private matters such as online shopping or making phone calls while at work and record them as working hours, you are cheating when recording your working hours. Important medical appointments are an exception. With prior agreement, the employer can release you for this.
  • Tardiness or unexcused absences: Frequent tardiness and unexcused absences violate contractual obligations. The employer can interpret this as fraud.
  • Misuse of the time clock: If employees are obliged to clock in at the beginning and end of work, they are cheating if they are misused – if for example they have a friend or third party stamp their own card – their employer.
  • Targeted manipulation of forms: Fraud also occurs when employees deliberately and deliberately enter incorrect working times in the forms provided for time recording. This includes, among other things, reporting overtime not worked.

Working time fraud with home office during the corona pandemic

With an employment contract based on trust-based working hours and in the home office (e.g. during the Corona crisis), employees can organize their working hours themselves. Employees can avoid suspected fraud if they are honest and only state their actual working hours.

Statutory Break Times in Germany

HoursBreak time
0 – 6No breaks necessary
6 – 9Minimum 30 minutes
9 – 10Minimum 45 minutes

When is the accusation unfounded?

There is no fraud in working hours if employees only record the work they have actually done . This includes the following activities:

  • Setting up your own workplace (switching on the PC, cleaning up the shop, etc.)
  • Short breaks (e.g. drinking or toilet breaks)
  • Change of clothing when workwear is mandatory (e.g. gastronomy, hospital)
  • Business trips (e.g. field staff, drivers)
  • Completing work tasks during business trips (e.g. preparing a presentation during the train journey)
  • Operating time during on-call duty
  • Working hours during on- call duty

TIP: What is the difference between on-call duty and on-call duty?

Employees can pursue their free time activities while they are on call. Only one assignment counts as working time. When on call, employees are directly at work or on company premises. The total service time counts as working time.

Working time fraud

What happens if the employer provides evidence of incorrectly recorded working hours?

If incorrectly recorded working hours can be proven, for example by manipulating forms, the employee faces the following consequences under labor law:

  • Warning
  • termination
  • complaint
  • Disciplinary proceedings (officials)

When is a warning threatened?

Employees first receive a warning if they commit working time fraud for the first time.

As a preliminary stage to dismissal, the warning initially indicates misconduct and the employee’s obligations. By refraining from the warned behavior, employees avoid being fired.

When do employees get notice of termination?

Dismissal in the case of fraudulent working hours is permissible. Depending on the individual case, different forms of termination are possible. This depends on whether employees have already received a warning.

  • Dismissal for behavioral reasons: If an employee continues to deceive when recording working hours after a warning, he or she is threatened with dismissal for behavioral reasons.
    According to a judgment by the Ludwigshafen Labor Court, an employee must expect to be dismissed for behavioral reasons if he is still late for work despite a warning. This also applies to a delay of just a few minutes (AZ: 2 Ca 420/10).

  • Notice of termination on suspicion: If there is an urgent suspicion of working time fraud without there being any evidence, the employer can issue a notice of termination on suspicion. However, this must be combined with a hearing of the employee so that he can comment on the suspicion and refute it.

  • Termination without notice: If an employee cheats for a long time, purposefully and verifiably during working hours, he is threatened with termination without notice according to § 626 BGB.
    The Federal Labor Court (BAG) ruled that extraordinary termination is permissible if overtime is intentionally recorded. This also applies if this has been agreed with the HR department (AZ: 2 AZR 370/18).

When is a lawsuit threatened?

When employees cheat at work, they not only betray the employer’s trust, they also commit a criminal offence. They harm the employer financially by being paid for work not done.

If the company suffers economic damage as a result of the fraud, employers can file a criminal complaint. The public prosecutor’s office initiates an investigation if the employer can justify the suspicion. The investigating authority then interviews witnesses, secures evidence and interrogates the accused in order to substantiate or refute the allegation.

Affected employees can refuse to make any statements during interrogations so as not to incriminate themselves. Legal support can be crucial in criminal charges. An experienced criminal lawyer can request access to the files and refute the allegation of working time fraud on the basis of the investigation files through their own investigations and other witnesses.

When do disciplinary proceedings for civil servants take place?

According to the Civil Service Status Act (BeamtStG), civil servants in the public sector face disciplinary proceedings in the event of working time fraud. This is also the case when officials have already been acquitted in criminal proceedings.

If the employer requests disciplinary proceedings, the procedure is as follows:

  • initiation of disciplinary proceedings
  • Determining the facts and evidence
  • hearing of the witnesses
  • hearing of the officer
  • completion of the procedure

This is then followed by the decision to drop the case or take disciplinary action (fines, reprimands, cuts in salary, demotion and removal from the civil service).

To mitigate the consequences of the procedure, officials can show remorse and pay a fine. The imposed disciplinary measures can be filed through a written objection or a lawsuit at the administrative court.

Working time fraud

What should I do if I am accused of fraud in working hours?

Has your employer accused you of working time fraud? Do not comment on the allegations and do not sign anything. You can insist on your rights as an employee and get advice from a lawyer.

You have these options for action:

  • Personal conversation: Employees can comment on the allegations in a personal conversation with the supervisor. In this way, both sides can jointly dispel the suspicion and find regulations to ensure compliance with working hours in the future.
  • Written reply: You can comment on the suspicions not only verbally but also in writing. Describe in detail what you did and did not do. Do you have e.g. B. accidentally not stamped out because of an acute doctor’s appointment; a written appointment confirmation can be proof of this.
  • Written objection: If you have received a formally incorrect or unjustified warning, you can submit a written objection in the form of a counter-notification. Gather valid evidence and testimonies to prove the allegations are unfounded.
  • Self-exculpation proceedings for civil servants : According to § 18 of the Federal Disciplinary Act, civil servants can initiate disciplinary proceedings against themselves in order to invalidate the allegation and to avoid removal from the civil servant relationship. Civil servants submit the application for self-discharge to their superior – the employer.
  • Unfair dismissal lawsuit : A dismissal is only permissible if there is a valid reason such as fraud. If the termination violates formal requirements such as e.g. B. Non-compliance with notice periods or if the allegation of fraudulent working hours is unfounded, employees can file a lawsuit against unfair dismissal.

In order to take action against an unfounded or incorrect termination due to working time fraud, legal support can be useful.

An experienced employment law lawyer can ensure a balanced situation in court. Because the employer side will probably be represented by a lawyer in order to prevent the termination from being withdrawn.

A lawyer can collect evidence and interview witnesses to refute allegations of fraud. In a conversation, he can mediate between employer and employee and find a solution in the interest of both parties. If this is not possible, he can file an objection or lawsuit against the dismissal in order to have the dismissal withdrawn or a severance payment.

A lawyer can do the following for you:

  • Checking the warning and termination for formal errors
  • Negotiations with the employer
  • Securing remaining leave and overtime
  • objection to the termination
  • lawsuit for reinstatement

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Working time fraud

FAQ: the most important things in brief

What counts as working time fraud?

Employees commit working time fraud when they account for hours not worked. These include overtime not worked, private telephone calls and frequent tardiness

Can the employer in Germany give notice in the event of fraudulent working hours?

Yes. Employees are threatened with dismissal if working hours are fraudulently justified. Depending on the individual case, a timely (ordinary), immediate (extraordinary) or suspected termination is permissible.

What do I do if I receive a dismissal for fraudulent working hours?

Keep calm and don’t sign anything! Get advice from a specialized lawyer. He takes over the negotiations with your employer and refutes the allegations with meaningful evidence.

Who bears the cost?

The rule that the losing party bears all the costs does not apply to actions for protection against unfair dismissal. Each party bears its own legal fees – regardless of the outcome of the court case. If the court costs arise, they are always borne by the losing party.
If your insurance policy covers employment law cases, your legal expenses insurance will cover legal and court costs. If you do not have insurance or cannot afford the legal fees, you can apply to the court for legal aid.

Expaturm
Expaturmhttps://www.expaturm.com/
Expaturm aims to help educate Expats in Germany on key issues that they will have to deal with while living in Germany by providing everything you need to know about Banking, Healthcare, Lifestyle, and Housing in Germany

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