Working time fraud: Examples and legal options

What is working time fraud?

Working time fraud occurs when employees record their working hours incorrectly. In this respect, it differs from the working time violation:

For example, if someone arrives late to work, overruns the break, or leaves work too early, but reports it that way when recording work hours, it is a work hours violation. If someone does the same things but claims to have been at work on time, not to have overstayed the break, or to have been at work until the actual end of work, it is a work time fraud.

Also, if you are doing private things at work (even the home office is a workplace) while you are supposed to be working, that is working time fraud.

So the boundaries are obviously fluid. Is a quick Whatsapp message already working time fraud? Or cleaning out the dishwasher? Fetching coffee? Generally speaking, anything that involves doing things that are not part of the job while at the same time getting paid for that time is potentially working time fraud.

Does working time fraud apply from the first minute?

In itself, yes. There is no lower limit above which the misuse of working time becomes fraud. Nevertheless, most employers take a relaxed view of minor disregard for working time, because holding a call from kindergarten or a doctor's appointment against employees, for example, would probably depress the mood at work immensely.

Working time fraud with trust working time, in the home office, in the field service

In fact, even with trust-based working time, working time fraud is possible. Trusted working time means that employees may determine the start and end of work, but not the duration. This is contractually regulated and must nevertheless be adhered to.

If your employees work in home offices or in the field, it is usually difficult to monitor their actual working hours. So, working time fraud can be carried out much easier here without being noticed.

How can I prevent working time fraud?

Clear rules can help here, such as written work instructions that explicitly prohibit the use of working time for private activities or that stipulate that employees clock out if they engage in other activities in between. The latter is also a good support for smoking breaks.

In addition, it is worth considering the corporate culture: Do female employees need to be forced to focus non-stop on work, or is it perhaps even a good argument for female applicants if they know that you, as an employee, understand their circumstances and give them appropriate freedom? In the end, working time fraud only becomes an issue when you perceive it to be detrimental and take action against it. But if your employees' performance doesn't suffer from cleaning out the dishwasher or talking to their partner on the phone - why create stress?

How do I prove working time fraud?

If you suspect that someone is committing labor time fraud and want to take action against it, you must be able to prove it, otherwise any labor or criminal action will be ineffective.

At best, you catch someone in the act, for example, when an employee clocks out someone who has long since gone home. Digital time recording can also help you in this sense, because a meticulous record of documented working hours in conjunction with other receipts that deviate from it can present a clear picture.

If you are unable to clearly prove work time fraud, you can issue a suspicious dismissal based on circumstantial evidence. However, you should definitely take the advice of your lawyers for this.

What legal options do I have to punish working time fraud?

Talk with each other

It may sound trite, but in many cases, kind but firm words that get to the root cause of the fraud are more effective than the legal cudgel. Whatever drove your employee to commit work-time fraud, you may be able to root out the cause of the upset to prevent further instances.

Warning

If nothing can be achieved on an interpersonal level, the warning is the next step. A warning is a warning that gives the employee the opportunity to improve before serious measures have to be taken.

Incidentally, working time fraud is generally grounds for dismissal, so a warning is not necessarily required. However, there may be cases where a prior warning is absolutely necessary. You should definitely consult your lawyers about this.

Cancellation

If the warning is of no use, you can give notice of termination. This can either be an ordinary termination (subject to the notice period) or a termination without notice. For a termination without notice, however, you need an important reason that makes it unreasonable for you to continue employing the employee.

For both warnings and notices of termination, you should consult your lawyers, otherwise you can quickly lose out in the labor court.

Criminal complaint

If the working time fraud has harmed your company "to a considerable extent", it may constitute a criminal offense. You can therefore file criminal charges, which in practice usually accompanies summary dismissal. However, make absolutely sure that you can prove intent and, of course, consult your lawyers in this case as well.

How is the issue treated in case law?

There are many exciting rulings from case law dealing with working time fraud. Often, several instances are involved.

Various examples outline that the unreasonableness of further employment often arises from the fact that the trust between employer and employee has been permanently disturbed or that it is not foreseeable that the employee will improve his behavior. In these example cases, the terminations without notice withstood the case law.

In other cases, employers were at a disadvantage, for example when video surveillance was used as evidence without permission or the damage caused was too minor. This shows once again that prudent decision-making, especially in consultation with your lawyers, can protect you from expensive litigation.

As an employer, can I also commit work time fraud?

Yes, even as an employer you are not safe from committing working time fraud. Especially if maximum working hours, minimum break times or minimum rest times according to the Working Hours Act have not been observed, it is tempting to adjust the documented working hours in order to avoid raised eyebrows at customs.

Caution: Your employees can take legal action against you by documenting their own working hours and suing you before the labor court. If, as a result of working time fraud, you are also paid less wages or do not comply with the minimum wage, you will be charged with a misdemeanor and can expect a fine. In the worst case, you will be guilty of tax evasion, which can even be punished with imprisonment.