Wann ist Reisezeit bezahlte Arbeitszeit?

In many industries, employees travel a lot. A classic example is the field service, where traveling is essentially part of the job. However, there are a number of other examples, such as assembly activities in the construction industry or the provision of consulting or services to customer companies in other cities or even countries.

In practice, such travel times are often not paid for by the employer. This often happens with the message that traveling is not work and that the employee can spend the time however he wants. He could also pursue private activities, “doze” or do whatever.
But is this also tenable under labor law? According to current case law, the answer is: probably no.
In principle, travel time must of course always be paid if the actual work is carried out during the trip (e.g. studying files, preparing or following up on meetings, answering emails). Ultimately, there is no difference whether the employee performs their work in the office or while traveling.
Travel time during which work is not actually carried out is to be assessed in a more differentiated manner. In several recent decisions, the Federal Labor Court has addressed the question of when such travel times are actually subject to remuneration.
First, the ruling dated April 22, 2009 (ref.: 5 AZR 292/08) ruled on the travel time of a sales representative. This judgment awarded the sales representative a claim to compensation for his travel work. The BAG stated that work is any activity that serves to satisfy another person's needs. In principle, the journey to work does not produce any work for the employer. However, the travel activity of field staff is one of the main contractual performance obligations. Since they do not have a permanent place of work, they would not be able to fulfill their contractual obligations without constant travel. It is precisely the economic goal of their activity to visit various customers, which necessarily involves travel. This applies not only to the journeys between customers, but also to the journey to the first customer and back from the last customer. In any case, work that benefits the employer can be assumed if the employee has to take action himself when traveling to and from the workplace and the journey is determined by the employer by virtue of directive law. However, if the employee goes directly to the customer from his home instead of having to take the detour via the company, time savings can be taken into account.
The following important conclusions can be drawn from this judgment:

The journey from home to the company (so-called travel time) is never paid working time.
For field staff, traveling alone is part of the work owed, even without any other work, and must therefore be remunerated. This also applies to the journey to the first customer and back from the last customer. There is harmonization with the principle that travel times do not have to be paid insofar as a deduction can be made for the (fictitious) route to the company.

This judgment already addressed an important circumstance that also has significance beyond field service activities. The BAG believes that work is any activity that, as such, “serves to satisfy someone else’s needs”. It has already become clear here that for an obligation to be paid it is not at all necessary that traveling is the actual activity (as is the case with field staff). When does an employee go on a business trip to satisfy their own needs?
What exactly was meant by this became clearer in a later decision by the BAG dated December 12, 2012 (ref.: 5 AZR 355/12). This decision no longer referred to the “classic” case of the field sales representative, but rather to the assembly work of an electrical mechanic. Here, unlike with the field sales representative, traveling as such was undoubtedly not the actual activity required. Nevertheless, the BAG assumed that the electrical mechanic's trips to his external workplaces were working hours subject to remuneration and based on the third-party benefit already mentioned in the judgment of April 22, 2009 as an essential criterion for the definition of "work". The BAG stated that work includes not only the actual activity, but also any other activity or measure required by the employer in a reciprocal relationship that is directly related to the actual activity or the manner in which it is carried out. Work also includes driving from the company to an external workplace as ordered by the employer. Such trips are primarily an activity that is of external benefit and serves the operational needs of the employer and is therefore “work”.
This means that almost any trip ordered by the employer to an external workplace (including, for example, a customer) is likely to be paid working time. The employee always undertakes these trips for the benefit of others, never in his own interest. It doesn't even matter that (as with field sales) traveling is part of the actual job. Simply the order by the employer and the fact that he is supposed to work in the interests of his employer at the external workplace is sufficient for the obligation to pay remuneration.
Company practice is likely to deviate to a large extent from the legal situation established by the Federal Labor Court.
To return to the argument mentioned at the beginning that travel time is not subject to remuneration because the employee is free to decide what exactly he does during the trip: This argument has no meaning according to the case law cited. Because it doesn't change the fact that the employee only undertakes the trip because it was ordered by the employer and he is supposed to perform his work at his destination in the interests of his employer.
The only good news for employers, which results from the case law of the Federal Labor Court of December 12, 2012, is that travel times do not necessarily have to be paid for with the “normal” remuneration. Rather, a different (lower) remuneration can also be agreed. However, if - as is often the case in practice - no lower compensation for travel time has been agreed, payment is based on the “normal” salary.
A strict distinction from the question of which travel time is to be paid as working time is the question of when travel time is considered working time under occupational safety law within the meaning of the Working Hours Act. If this is the case, the maximum working hours of the Working Hours Act (10 hours a day, 48 hours a week) must be adhered to. In this regard, the BAG decided in its judgment of July 11, 2006 (ref.: 9 AZR 519/05) that travel time is considered working time within the meaning of the Working Hours Act if the employee has to use it to complete his work tasks (e.g. file processing, answering E -Emails, preparation and follow-up of appointments). Travel time in which this is not the case and in which the employer simply tells the employee to use public transport and leaves it up to the employee to decide how to use these times is not working time within the meaning of the Working Hours Act. The employee can do whatever he likes, in particular he can also take care of private matters or sleep. The argument that the employee can spend the travel time as he wants is definitely important in terms of occupational safety law (but only to this extent). According to the prevailing opinion, classification as working time within the meaning of the Working Hours Act should be affirmed if the employer requires the employee to use a car and the employee has to drive the car himself. However, as should be emphasized again, all of this has no bearing on the question of when travel time has to be paid for. The only thing that matters here is the criteria mentioned above (arrangement by the employer, whether the travel time is useful to others). In its judgment of December 12, 2012, the BAG expressly stated that the classification of working hours according to the Working Hours Act does not allow any conclusions to be drawn about the obligation to pay remuneration.