On April 23, 2021, the new regulation of Section 28b (7) sentence 2 Infection Act (IfSG) came into force. According to this, employees are obliged to accept the employer's mandatory offer to enable mobile working. Unless they have a valid reason for continuing to come to the office. This means that employees can no longer decide for themselves whether to travel to the office or work from home. Companies are also obliged to offer employees who are unable to work from home - for IT reasons, for example - at least once a week a PCR, rapid or self-test. The costs must be borne by the employer, according to the new legal situation.

Reduce costs by working from home

Many service companies in particular - such as logistics companies - are already taking the opportunity to reduce their rental costs for office space in the long term. This is because the need for office space has been reduced in many forwarding companies. This is due to the fact that some employees want to continue working within their own four walls - even after the pandemic has ended - in order to benefit from the advantages of working from home. On the one hand, employees who no longer travel to the office save time and money. The hundreds of thousands of commuters in particular, who travel many kilometers to the office in urban areas every day, achieve significant time and cost benefits. In addition, employees can better coordinate their professional duties with their private needs.

A Bremen-based logistics company, which employs around 100 people in Germany alone, has also had positive experiences. Around 90 percent of the workforce has been working from home since the outbreak of the pandemic. As luck would have it, the rental agreement expired on December 31, 2020. This was because it was contractually agreed five years ago that the tenant could extend the lease if they wanted to exercise their option right. The employer asked its employees in writing which of them wanted to work from home permanently. The result: around half of the workforce would also like to work from home permanently once the pandemic is over. This result led to a considerable reduction in the logistics company's office space requirements. This enabled it to significantly reduce its rental costs. Ultimately, the monthly office space requirement was reduced by a good 1,000 square meters. The logistics company saved EUR 18,500 per month in cold rent for the new lease term of seven years. An additional 4.50 euros was added for ancillary rental costs, i.e. a saving of at least 23,000 euros per month. This amount was increased by further savings on ancillary costs due to lower electricity and water consumption. It is already clear that the amount of office space required at other locations has also been reduced. This has enabled the freight forwarder to achieve further cost reduction benefits.

According to experts, the risk of being attacked by a hacker has increased enormously for service providers working from home. For example, Sascha Michel Kessel, head of the Cyber Competence Center at insurance broker Oscar Schunck, believes that seven out of ten cyber attacks start with staff. Many cyber attacks are carried out by perpetrators using phishing emails, which, according to Kessel, are disguised as "advice" emails, for example.

The European Directive and the Federal Data Protection Act oblige the logistics provider to maintain data confidentiality at all times. Not all employers are aware that they are obliged under Section 53 sentence 1 of the Federal Data Protection Act (BDSG) to obligate the newly hired forwarding accountant to maintain data confidentiality when he or she starts work in the office. This obligation also applies without restriction when working from home. In addition, the entire management should be aware that it remains responsible - in terms of data protection law - within the meaning of Article 4 No. 7 GDPR if parts of the staff are predominantly or only digitally connected to the office location.

From the company management's point of view, it is very important that they conclude a supplementary agreement on home office work with employees who work from home. As a rule, the freight forwarder provides the employee with all technical equipment, such as a laptop, for use. In this context, specialist lawyers such as Axel Bertram and Dr. Walter Walk recommend that the employee is only permitted to process any job-related data on the company laptop. The employer should strictly prohibit the employee from using their private computer for business purposes.

Who pays for the home office?

In practice, the question of who is responsible for the costs of setting up and maintaining a workstation in a home office arises time and again. Roland Falder, a specialist lawyer for employment law, believes that employees who set up their workstation in a home office at their own expense could have a claim for reimbursement of costs against the forwarding agent in accordance with Section 670 of the German Civil Code (BGB). Furthermore, employers and employees are discussing who should pay for running costs (including electricity) incurred by working from home. In practice, it is recommended that the employer pays the employee a monthly lump sum in order to reduce controlling to a minimum.

Many companies record their employees' working hours, as they pay for any overtime worked by employees or require them to compensate for reduced hours by working more hours at the next opportunity. The Working Hours Act continues to apply without restriction in the home office. The employer is permitted to set the daily working hours and break times. However, a clearly defined time window often stands in the way of the employee's desire for more flexibility and the consideration of the employer's operational interests. The above underlines the fact that the contracting parties need fair and flexible arrangements to take due account of the interests of both parties when employees work from home.

The importance of recording working hours is underpinned by the ruling of the European Court of Justice (ECJ) from May 14, 2019 (case reference: C55/18). The judges of the ECJ ruled that the member states of the European Union are obliged to ensure that all technical and organizational measures are in place to measure daily working hours. A large number of legal experts believe that it is currently not necessary to implement a "seamless time recording system" in companies until there is a possible "new legal regulation" in Germany. However, there are lower courts, for example the case at the Emden Labor Court, which based its decision of 20 February 2020 (AZ: 2 Ca 94/19) on the ECJ ruling in its reasoning. This case concerned the remuneration of overtime that the employer did not want to pay.

Clear regulations necessary

The above explanations have made it clear that employers have a great need for documentation. Making clear agreements with employees who work from home on a permanent basis is a challenge that HR departments must overcome. Organizational and information technology regulations, with the aim of ensuring that employees only receive the information they need, is another challenge. The aim is to reduce the cyber risk to an unavoidable minimum.

The consistent implementation of the "need-to-know principle" has proven its worth in order to protect business secrets. Freight forwarders are advised to check their customer service contracts to determine whether the use of customer data in the home office is permitted or strictly prohibited. If the contract prohibits such use, the freight forwarder should talk to its customer about amending the contract in order to avoid a breach of contract that could lead to the termination of the business relationship.

Win-win situation possible

Conclusion: Working from home can lead to a permanent win-win situation for the logistics company and the workforce. It is crucial that the employer makes a precise and complete home office agreement with its staff who will be working from home permanently in the future. Otherwise, management runs the risk of forfeiting the economic benefits of working from home due to the occurrence of claims, for example due to a data breach or a successful cyber attack.

Published in: materialfluss SPEKTRUM 2021.