Two salaries with easy working hours sounds like the dream of many employees. For many, working from home has already brought a high degree of flexibility to their working life. Some have used the greater time availability (no commute, etc.) to supplement their salary with a second job. However, if a secondary job is done during the employee’s main job working hours, this can have significant consequences. We examine the question of whether and in what circumstances secondary employment working remotely is permissible and what an employer can do in response to it.
A news story from the US recently made waves: a programmer admitted to having taken up a second full-time job while working from home due to the pandemic. According to his own statement, he does both full-time jobs during his 40-hour working week. It seems true to the motto: ‘Don’t work harder (or longer), work smarter’. This took place, of course, without the knowledge of either of his employers. Inevitably, the question arises whether employers in Germany could also be confronted with this kind of situation.
Secondary employment is generally permitted in Germany and does not have to be approved by the ‘main’ employer. Secondary employment can take the following forms:
However, if an employee takes up a secondary job (no matter if it is one hour per week or 40) which s/he wants to pursue during regular working hours of his or her main job, this constitutes a violation of the employee’s duties under his or her employment contract. This is because during an employee’s contractually agreed working hours, s/he owes the employer full working capacity. The example of the programmer from the US would therefore probably result in severe sanctions (see below) if it were tried out here in Germany.
To be on the safe side, employers usually require their employees to declare all secondary employment in their contracts of employment or to have any secondary employment approved by the employer. This regulation is permissible and makes sense. It enables the employer to check secondary activity and the employer should take this check seriously. It not only prevents the employee from working in a competing role, but also prevents violations of the Working Hours Act that could result in fines and penalties.
This is because the employer must ensure that the daily maximum working time of eight hours is not exceeded. In addition, there must be rest periods of at least eleven hours between work assignments. Particularly when employees work from home, these limits are already fluid. If the employee takes on a secondary job in addition to his or her main employment relationship, the risk of violations is obvious.
By contrast, if the secondary employment is a self-employed role, the employer does not have to fear any sanctions, as the Working Hours Act only applies to ‘employed’ secondary employment.
If an employee has not reported any secondary employment, the employer could potentially check whether s/he is working a second job. Indications might include: lack of availability of the employee by telephone during working hours, frequent rescheduling of meetings or telephone calls, not participating in ‘optional’ appointments, or a significant drop in performance during the working week due to the burden of two jobs. It could also be helpful to hear from other employees, customers, suppliers or other company partners.
If an employee has a part-time job with another employer, a change in tax class can be an important indication. Only one of the two employment relationships can be the ‘main employment relationship’. Unless explicitly declared otherwise, the most recently declared employment relationship is treated as the ‘main employment relationship’. The previous employment relationship automatically becomes a secondary employment relationship with tax class VI. If the employee or the new employer does not pay attention when registering for social security, the previous main employer may receive a clear indication of secondary employment from this.
If there is a concrete suspicion that secondary employment is being carried out during working hours, it might be possible to analyse the company’s IT infrastructure (emails, browser history, etc.) for indications to this effect. However, employers must have significant grounds for suspicion in advance of taking any step of this type, and should proceed proportionately and with caution, taking into account and respecting the employee’s privacy and data protection rights, especially if private use of IT is permitted.
Employers have the usual means at their disposal in the event of suspected dual employment, from a discussion with HR to formal warnings and extraordinary dismissal. In addition, employers can consider asking the employee to return from (pandemic-related) work from home. If the place of work was not changed to an employee’s home office either in the employment contract or by a later agreement, s/he has no entitlement to work from home.
Employers who wish to reduce the risk of employees taking on secondary employment should consider the following measures: