Working time fraud: doing laundry in the home office
However, termination due to fraud in working hours is only possible if the employer can prove the fraud. To do this, he can use testimonies from other employees or even hire a private investigator. It is not permissible under data protection law to secretly install surveillance cameras and to cite the recordings as evidence. The first basis for proof of working time fraud is always the company’s internal working time structure, which employers have been obliged to follow since the Working Hours Act (ArbZG) came into force in 1994. According to § 16 ArbZG, employers must always keep the registered working times of their employees for at least two years – anyone who violates this risks a fine of up to 30,000 euros according to § 22 ArbZG. How exactly the working hours are recorded is irrelevant. Of course, a time sheet that has to be filled out by hand is easier to manipulate than a digital platform, an app or biometric recognition.
As labor and commercial law expert Dr. Ahlborn explains on his law firm’s website that the interruption of work while the time clock is running must be intentional and not socially appropriate in order to be classified as working time fraud. So anyone who does laundry in the home office on the side is committing fraud – but anyone who (briefly) greets a colleague or goes to the toilet is within the legal framework. This also applies if employees have to temporarily stop working due to a technical problem on the part of the employer, for example: After all, the reason for the interruption lies with the employer. The only important thing here is that you remain ready to perform during such an interruption and do not stray too far from your workplace.
In most cases, a warning or dismissal will follow
However, if one commits working time fraud and is caught doing so, in most cases this will result in a warning. If a lot of working time was entered incorrectly, a proper – i.e. timely – termination can also take place. According to Ahlborn, however, a warning for a similar misstep must usually have been issued beforehand. It is therefore not enough to have been warned in the past for an insult, the previous warning must have had something to do with working hours.
Employees who have engaged in serious working time fraud can also be terminated without notice. However, Ahlborn writes on his website: “Employees should know one more thing: the employer only has two weeks after becoming aware of it to give notice without notice. If he finds out about the fraud in working hours and waits longer than two weeks, a notice of termination with notice may still be considered .” If, in the eyes of the employer, even dismissal without notice is not enough, the public prosecutor’s office can also come into play – then criminal proceedings for fraud will be initiated. If employees are actually convicted of working-time fraud, they face a fine or, in extreme cases, a prison sentence of up to five years. “However, these criminal consequences will only occur in particularly serious cases. If the public prosecutor’s office is informed at all, it is often possible to work towards the termination of the proceedings,” says Ahlborn. The Hasselbach law firm, which specializes in labor and family law, estimates the probability of a prison sentence on its website in a similar way.
By the way: Anyone who has been unjustly accused of working time fraud and is now supposed to leave the company can defend themselves against the dismissal in court. After receipt of the notice of termination, you have three weeks to take this step.
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