Am I entitled to breaks?
Yes. Section 4 of the Working Hours Act (ArbZG) stipulates that work must be interrupted by rest breaks scheduled in advance—at least 30 minutes for a workday of more than six but no more than nine hours, and 45 minutes for a workday of more than nine hours. Rest breaks may be divided into periods of at least 15 minutes each. Employees may not be required to work for more than six consecutive hours without a rest break.
What applies to minors?
Young people must be granted rest breaks scheduled in advance: at least 30 minutes for a work shift lasting more than four and a half hours but no more than six hours, and 60 minutes for a work shift lasting more than six hours. Only work interruptions of at least 15 minutes count as rest breaks. Rest breaks must be granted at appropriate times, no earlier than one hour after the start of the workday and no later than one hour before the end of the workday.
Young people may only be permitted to remain in work areas during rest breaks if work in those areas has ceased during that time and their necessary rest is not otherwise impaired (Section 11, paragraphs 1–3, of the Youth Labor Protection Act (JArbSchG)). If the employer fails to grant breaks, this constitutes an administrative offense and may be punishable by a fine of up to fifteen thousand euros pursuant to Section 22(2) of the Working Hours Act (ArbZG).
Regulations on Rest Breaks, Noise Breaks, and Computer Screen Breaks
The term “rest break” refers to breaks that are not part of working hours and therefore do not have to be compensated. Paid breaks, such as noise or computer screen breaks, are therefore not considered rest breaks within the meaning of this provision (Federal Labor Court [BAG] ruling of July 28, 1981 — 1 ABR 65/79). The concept of a break implies that the duration of the interruption in work is determined in advance. The employee is free to decide how to spend this time. The right to leave the workplace during a rest break may—according to an older ruling by the Federal Labor Court (BAG)—be restricted (BAG, August 21, 1990 – 1 AZR 567/89).
In our opinion, however, this decision does not sufficiently take into account the right to freely develop one’s own personality. In any case, the employer must have reasonable grounds for imposing such a break regulation; otherwise, it would be disproportionate. If a works council exists, the employer cannot unilaterally impose break regulations that restrict employees’ personal rights. Exceptions apply to shift work and public transportation companies (Section 7(1)(2) of the Working Hours Act (ArbZG)).
What constitutes a break under labor law?
Under labor law, a break occurs when the employee is completely relieved of their work duties, meaning they are not even on standby. They may leave their workstation and the workplace provided there are no conflicting , valid break regulations in place (see Section 2).
Who determines the break times?
The employer may determine the exact timing of breaks within the scope of their right to issue instructions. However, these must be established in advance. The rest breaks regulated in Section 4 of the Working Hours Act (ArbZG) represent only the minimum requirement and do not prevent the employer from providing for longer breaks by virtue of its right to issue instructions (Federal Labor Court [BAG], judgment of December 16, 2009 – 5 AZR 157/09). However, the employer may not schedule completely unreasonable rest breaks or excessively long breaks. In addition, the Working Hours Act must also be complied with regarding rest periods (the time between one work assignment and the next). If there is a works council, it has a right of co-determination regarding the scheduling of breaks pursuant to Section 87(1)(2) of the Works Constitution Act (BetrVG). In such cases, the employer cannot determine the breaks by virtue of its right to issue instructions.
Can I schedule my breaks according to my personal needs?
No. By requiring the employer to schedule breaks in advance, the legislature intended to prevent employers from overwhelming employees with work to the point where they cannot take their breaks. However, if break regulations exist that specify a time frame for breaks—for example, a half-hour break between 12:30 p.m. and 1:30 p.m.—the employee may take their half-hour break within that specified time frame.
Am I entitled to pay for my break time?
No. Scheduled breaks are not paid. Exceptions: However, payment for breaks may be agreed upon in a collective bargaining agreement or an employment contract.
Does going to the restroom count as break time?
No. Such a trip is not a rest break but a permissible—and, moreover, likely necessary—interruption of work. According to the Cologne Labor Court, even frequent trips to the restroom do not justify a pay cut. The owner of a law firm had meticulously tracked how much time one of his attorneys spent in the restroom. Over a two-week period, he tallied a total of 384 minutes. As a result, he deducted 680 euros from his employee’s salary. The employee filed a lawsuit, arguing that he had suffered from indigestion during that time. The court ruled in his favor. It cannot be clearly defined where the line between this and a refusal to work lies (Cologne Labor Court – Case No.: 6 Ca 3846/09).
May the employer deduct the scheduled break time or only the break actually taken?
According to a ruling by the Hamm Labor Court (Case No.: 3 Ca 1634/11), an employer who has not specifically defined break times may not retroactively deduct a fixed break time from working hours on a blanket basis. However, if break times are established in advance and the employee is also able to take the breaks, these do not count as working hours.
Are employees required to take breaks?
Yes. The employer is obligated to monitor compliance. Violations by the employer may be punished as administrative offenses with fines. In particularly serious and intentional cases, the violations may be prosecuted as criminal offenses.
Is there a legal right to smoking breaks?
No. Unlike, for example, a trip to the restroom, a smoking break does not constitute a permissible interruption of work. Nor are smoking breaks provided for by law. However, there are collective bargaining agreement provisions that provide for short breaks, which may then be used for smoking if necessary. Claims by employees may also arise from general established practice within the company or on the basis of the principle of equal treatment.
