Logistics Employers Against Legal Right to Home Office

The Federal Association of Freight Forwarding and Logistics (DSLV) continues its series ‘Five Questions to’. This time on the topic of home office in freight forwarding and logistics with Markus Suchert, Head of Labor, Social and Collective Bargaining Law at DSLV. From the political side, a law is already being demanded that cements such a right for employees. However, this is a massive intrusion into the entrepreneurial freedom of the economy.

(Berlin) “Why do employers in the logistics industry reject a legal right to home office?” This question was internally addressed by the Federal Association of Freight Forwarding and Logistics (DSLV) in the form of an interview. The conversation partner is Markus Suchert, legal advisor and responsible for labor, social and collective bargaining law at DSLV.

DSLV: The federal government has urged employers by regulation to allow their employees to work from home wherever possible. Is this a step towards the much-discussed legal right of employees to a home office?

Markus Suchert: Clearly no – neither from a legal nor from a legal system perspective! The Corona Occupational Safety Regulation is initially a regulation of the federal government limited until March 15, 2021, aimed at combating the pandemic, which assumes that the general infection situation can still be accelerated at the workplace. This regulation defines obligations for employers and contains occupational safety measures, thus primarily serving to protect employees at the workplace. It must be distinguished from the controversial ‘Mobile Work Law’ of the Federal Ministry of Labor, which aims to promote the compatibility of work and family life or – as it is very abstractly formulated in the draft law – the “accompaniment of a structural change” through a strengthening of employee rights.

How widespread are home office solutions currently in logistics and do they help in combating the pandemic?

The restriction of contacts at the workplace contributes to combating the pandemic. Therefore, logistics companies have implemented effective hygiene concepts at impressive speed where people must work together on-site. Additionally, companies are creating more and more home office solutions. Certainly, there is still potential, but both companies and their employees recognize the organizational and technical limits of decentralization and the digitization of their processes. Commercial employees and strategically working personnel can often work remotely, while operational staff usually cannot. Non-asset forwarding companies can therefore react differently than forwarding companies with their own logistics facilities and fleets. These are all company-specific considerations for which there can be no general and certainly no universally applicable legal solution.

What arguments are there against a legally guaranteed right for employees to a home office?

Markus Suchert

Home office is neither an invention of the Federal Minister of Labor nor of employee representatives. Allowing employees to work from home at their own request on a case-by-case or phase basis should remain free organizational and personnel management decisions of the companies, aimed at accommodating the individual needs of employees. These must, of course, be coordinated with the company’s work processes. Therefore, companies must continue to have the flexibility to decide on the design of their operational processes. Employers must retain their right of direction, with which they regulate both the location and duration of their employees within the framework of legal and contractual provisions. This includes individual agreements on mobile work. A law that enshrines a right to home office from the employee’s perspective would be an even deeper intrusion into entrepreneurial decision-making freedom than the Corona Occupational Safety Regulation, which would continue to have effects beyond the pandemic.

Where do you see the biggest hurdles in the ‘Mobile Work’ law?

It is still not a law – the Grand Coalition is still not in agreement on whether and in what form it wants to introduce a law in the Bundestag. The latest draft has been softened, but it still provides for a so-called discussion claim for employees. According to this, employers would be obliged to carefully examine their employees’ requests for home office. If the employer does not agree, they must provide a written justification within a specified period. This means that the legislator is effectively assuming home office as the norm, and the employer must provide reasons why they consider the employee’s presence at the workplace to be absolutely necessary – practically a reversal of the burden of proof! The associated bureaucratic effort is unacceptable. And what many also do not realize: A law on mobile work must also precisely regulate working and data protection measures at the workplace outside the company, consider aspects of IT security, grant the employer a right of access, and much more. Implementation is financially demanding and does not necessarily align with the interests of the employee.

What expectations do employers in the logistics industry have of the legislator instead? What can and should the legislator still regulate?

Of course, we must modernize work processes together and adapt to social change. However, the question of whether an employee can perform their work of equal quality from home must continue to be negotiated solely between employers and employees. This can only be the subject of operational, ideally collective agreements; there is no need for state regulation. The legislator will not succeed in translating current home office experiences into a coherent law without tightening the corset too much unilaterally. Spatial flexibility is also not the only decisive factor for the next step into the digital working world. It would be much more important to relax the overly rigid Working Hours Act. The possibility of synchronizing an employee’s individual life situation with the operational workload through more flexible working hours would benefit both sides. The legislator must become active here!

Title image: © Illustration by Alexandra Koch on Pixabay

Photo: © DSLV

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