Breaks as a point of contention: legal rules and how to record break times

What is the difference between rest periods and break times?

There is a legal difference between break times and rest periods, or between rest breaks and rest periods. Break times, or rest breaks, are interruptions between blocks of work within a single day. Rest periods, by contrast, are interruptions between two working days, that is the longer blocks of free time between the end of one working day and the start of the next. They must be at least 11 hours long.

Exceptions to the rest period rules apply in the following industries:

• hospitals and other care, treatment and support facilities
• restaurants and other catering and accommodation businesses
• transport operators
• broadcasting
• agriculture
• animal husbandry

Rest periods can be shortened to 10 hours if that reduction is compensated for. To do so, the rest period has to be increased to 12 hours within one month.

In hospitals and other care, support and treatment facilities the rest period can be shortened even further, for example in the form of on-call duty. However, this may not take up more than half of the rest period and has to be compensated for.

What statutory requirements apply to break times?

Breaks are a point of contention in many businesses. Their legal basis is set out in the German Working Hours Act (Arbeitszeitgesetz, ArbZG) , whose aim is to protect employees' health. It contains the following rules on break times:

Alongside the length of breaks there are further rules that also become important later on when recording break times.

Timing of breaks

Breaks should be placed sensibly. That means: at the earliest one hour after the start and at the latest one hour before the end of working time.

Organising breaks

Breaks have to be organised in advance, i.e. employees must know before the working day starts when there will be a break and how long it will last. There can be specific instructions for this, or time windows within which the break should be taken. If employees want to decide on their breaks themselves, care has to be taken that the rules of the German Working Hours Act are observed.

Payment during breaks

Breaks are generally not paid, unless the contract states otherwise.

Are there exceptions to the break time rules?

The rules in the German Working Hours Act can also be extended and made more specific. The employer's right to issue instructions, arrangements in the employment contract, collective agreements or company rules can form the basis for individual break rules.

Industry-specific exceptions

In shift work or transport operations breaks are often split into short breaks of around 15 minutes, but at least 5 minutes.

If particular risks to employees' health are to be expected in the area of work or the group of employees concerned, rest breaks can be extended.

Exceptions from collective agreements

Collective agreements apply to employees in the treatment, care and support of people, in the public sector and in public religious bodies. In these areas break times can be aligned with the nature of the work and the needs of those people. Even in this case, though, employees' health remains the focus. Reduced break times therefore have to be compensated for with longer recovery periods.

Businesses not bound by a collective agreement can adopt the working time rules from the collective agreements that would apply to them.

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How can you record your employees' break times?

Because breaks do not count as working time, they can be deducted from it. With time tracking software this takes just a few clicks. Here is how you can record break times correctly:

1. Automatic break deduction

With this option, rest breaks are deducted automatically in line with the working time model set up in the software. Employees therefore do not have to enter breaks manually and only need to log in at the start of a working day and log out at the end. There is also the option of booking breaks at a fixed time.

2. Automatic break deduction plus manual break entry

If breaks last longer than the working time model specifies, you can also let your employees add them manually afterwards. The defined rest breaks are deducted automatically. Anything beyond that can be added by employees on their phone, on a tablet or in the browser on a PC.

3. Manual break entry

With this variant employees clock their breaks themselves in the software. These are deducted from working time.

With clockin, manual break entry is very simple. Employees tap the break symbol next to their name – and the break has started! At the end of the rest break they do the same again and are back on the clock.

What do you need to bear in mind when recording smoking breaks?

Although there is no legal entitlement to a smoking break, it is well worth setting company-specific rules for them and recording these breaks too. Employers have two options for doing so:

Relaxed and trust-based: not recording smoking breaks

Smoking breaks are tolerated and not recorded, so they fall within regular working time. Employers trust their employees to keep the breaks as short as necessary and not to let their productivity suffer. With this variant, though, the problem often arises that non-smoking colleagues feel unfairly treated because they get no paid breaks.

Clear and fair: recording smoking breaks

With this option smoking breaks are recorded, that is deducted from the specified break times, and do not count as working time. This approach is stricter but fairer, as every employee is entitled to the same break times.
Would you like to know more about recording smoking breaks? Then take a look at this blog post: Should my employees clock their smoking breaks?

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What happens if the statutory rest break rules are breached?

Skipping the break and leaving earlier instead – for many employees that prospect is tempting. However, going without the prescribed break times endangers health and is a punishable offence. If employees ignore the statutory rules, the employer can be held responsible. But employers themselves must also not push employees to shorten or skip their rest periods. Employers are therefore obliged to monitor compliance with breaks. Here too, digital time tracking can be a good support for guarding against any breaches. That way you as an employer are always on the right side.