Working time fraud is a serious problem for many companies in Germany. Manipulation ranges from private phone calls to extended smoking breaks to incorrect recording of working time. However, many employees are not aware that this conduct can not only violate employment contract obligations, but may even result in criminal consequences. This blog post highlights when there is working time fraud and what measures you as an employer can take if your employees manipulate working hours.
What is working time fraud anyway?
According to Section 611a BGB, employees and employers are obliged to provide their labor or to pay the worker accordingly. By definition, employment fraud occurs when an employee intentionally withholds working hours but still receives the salary in return.
In addition to permanently damaging the relationship of trust between employer and employee, the manipulation of working hours can also result in criminal consequences in the form of a fraud report for employees. The consequences range from warnings to ordinary or even immediate terminations.
Examples of working time fraud
Working time overruns often deliberately occur when employees pretend to have invested more time than is actually the case. Sometimes, however, this also happens unintentionally. Regardless, such violations result in financial disadvantages for you as an employer. It is important to distinguish between Working time offenses and Working time fraud. The latter involves intent to deceive, while the former has no intent to deceive, such as unintentional delay due to train delays.
Example 1: Manipulate time recording
A prominent example from Hesse (Giessen District Court Judgment, August 16st 2013) explains how feigning work not done can lead to immediate dismissal. In the present case, an employee of a large butcher shop was dismissed without notice. The Dismissal was made due to the allegation that he had repeatedly and intentionally circumvented time recording in order to take paid breaks. The employee did not properly register his chip on time recording and manipulated his working time in the process. The Labour Court ruled that the immediate dismissal was effective because the employee had intentionally committed working time fraud, which had significantly disrupted trust between employer and employee.
Example 2: Cigarette Breaks
A common topic of conflict in the workplace is taking cigarette breaks. In principle, any work interruption — which is not deducted within the agreed working hours — can be regarded as working time fraud. However, the exact circumstances play a role in each individual case. Many employment contracts contain clauses which require that all breaks and work interruptions must be stamped or recorded. Therefore, if smoking breaks can be proven several times during working hours, immediate dismissal in accordance with Section 626 of the German Civil Code may well be given if the employee does not sign off.
Other examples of working time fraud:
1. Use working time to handle private matters, such as organising personal appointments or carrying out banking transactions online.
2. Spend time at work with extended coffee breaks or personal conversations with colleagues instead of working productively.
3. Falsify working time recording by reducing break times or passing off unrecorded breaks as working time. More information on the topic Labor law break regulation.
4. Use working time to do side jobs or freelance work instead of focusing on working for the main employer.
5. Stay in the office longer after work to give the impression that you have worked overtime even though the work has actually already been done.
Manipulated working hours? You can take these steps
Even if it is widespread, working time fraud is anything but a minor offense. The deliberate falsification of working time is fraud and a significant breach of employment contract obligations. The consequences can be far-reaching:
Warning: When detecting working time fraud, first write a warning to the employee concerned. Although this is not subject to a specific time limit, it should be issued immediately after the misconduct identified.
Termination in accordance with Section 314 (2) BGB: In the event of repetition, you may reserve the right to ordinary termination due to conduct in accordance with Section 314 (2) BGB to pronounce. The prerequisite for this is a prior, but unsuccessful, warning
Termination without notice: In accordance SECTION 626 BGB You can terminate the employment relationship without notice if there is good cause and continued employment appears unreasonable. Intentional Deception and Planned Manipulation of Time Recording Systems by Labor Courts are rated as particularly serious.
Can the employer reclaim wages in the event of working time fraud?
As soon as the suspicion of working time fraud is confirmed, you as an employer have various options for terminating the employment relationship. There are also other options available:
Wage repayment: In serious cases of working time fraud, you can obtain a partial refund of your salary in court. You can have it checked under civil law whether the employee has received a wage or salary unlawfully and, if necessary, claim recovery.
Compensation: If an employee who is allowed to use a company vehicle exclusively for business purposes regularly uses it for private trips, you can have it checked whether you are entitled to compensation claims. You could possibly claim compensation for the additional wear and tear of the vehicle or at least be reimbursed for the fuel costs for the privately driven kilometers.
Complaint of Working Time Fraud: The Ultimate Consequence
An intentional violation of the applicable working time regulations can be prosecuted as fraud under Section 263 StGB if you file a complaint as an employer. This can result in both employment and criminal consequences for the employee. In the event of significant (especially financial) damage to your company, it is possible to file a criminal complaint. However, a condition for an actual conviction is that there is conditional intent.
In accordance Section 263 (1) StGB An employee is liable to prosecution if he wants to obtain an unlawful financial advantage for himself or a third party. Attempted fraud is also punishable. In the event of a conviction for working time fraud, there is a risk of a fine or — depending on the damage to the company — even imprisonment of up to 5 years. If an employee has deceived about his work performance over a longer period of time and has thus caused significant financial damage to your company, you as an employer can — in addition to dismissal without notice — also reserve the right to report fraud
Detecting working time fraud: Challenges & solutions
In accordance with Section 1 (2) KSchG, you as an employer must prove the reasons for the dismissal — even if there is a dismissal due to manipulated working hours. Detecting working time fraud can sometimes be difficult, as control devices (such as time clocks or suitable software for recording working time) are often missing or are themselves the target of manipulation. Especially with flexible working time recording Like flexitime, Time Recording in the Home Office And trust-based working time control is difficult, as working time recording is often placed in the hands of employees.
In order not to rely on random discoveries of working time fraud, time recording systems such as ZEP can help you identify suspicious patterns and discrepancies. Working from home, for example, can be compared with the work results achieved. Of course, digital systems are also not fully protected against manipulation by employees. However, they have clear advantages for employers, because the data collected can serve as proof in court cases if it can be proven that the employee in question was not working at the company or working from home during the control call. Noticeable gaps in digital time recording combined with witness statements can provide a first clue of working time fraud, as long as you Working time recording data protection Pay attention.
Attention special case: Dismissal on Suspicion
As an employer, you have the option to give notice of suspicion if there are certain circumstances. If there is no concrete evidence, but you strongly suspect that an employee is cheating when recording time, you may consider dismissal based on this suspicion. This requires you to talk to the employee and try to resolve the matter.
Attention: If you give notice of suspicion, you should be certain that fraud has taken place, such as working time fraud. Objectively speaking, suspicion must be very likely, which is often the case if a warning has been issued beforehand.
Conclusion
Working time fraud is a serious problem that can take various forms — from the transfer of stamp cards to the unauthorised use of working time for private purposes. Even employees who sign in and out correctly could violate employment contract obligations by not being productive during working hours.
Time recording software such as ZEP can help uncover suspicious patterns and ensure a transparent employment relationship. Both you as an employer and an employee benefit from such time recording, as it can be used as evidence in court, among other things, and overtime actually worked is automatically recorded in an individual overtime account for each employee.
FAQ
Working time fraud from the employer: How do you act as an employee?
If you, as an employee, suspect that your employer is manipulating working hours, it is important to react appropriately. First, you should document carefully and collect all relevant evidence. You should then talk to your manager or HR department to voice your concerns and ask for clarification. If no satisfactory solution is found or you feel that you have been treated unfairly, you can contact an external body, such as a trade union or legal advice center, to discuss further steps. It is important that you know your rights and that you are not afraid to defend them if you think you are a victim of working time fraud.
Because: Manipulating time recording to change working hours is illegal and can have serious legal consequences, including fraud and possibly forgery of documents. According to Section 263 StGB, someone who gains a financial advantage through deception commits fraud. Computer fraud in accordance with Section 263a StGB can also occur when electronic programs are manipulated. Both fraud and computer fraud can be punished with fines or imprisonment.
When does working time fraud expire?
The limitation period — even in the case of working time fraud — is set in accordance with Section 78 StGB on the basis of the penalties provided for by law. If the sentence is up to five years of imprisonment, the Act provides for a limitation period of five years in accordance with Section 78 paragraph 3 No. 4 StGB. Once this period has elapsed, the offence can no longer be prosecuted.
Working time fraud by a colleague How do I behave correctly?
If you notice that a colleague is cheating during their working hours, this can become a real dilemma. It is important to act appropriately, as covering up working time fraud is also incorrect.
First, you should talk to the colleague in question and talk to him. It may be possible to clear up the suspicion without taking any further action.
However, if the colleague remains clueless and the working time fraud continues, you should take action. Because: According to your employment contract, you have a duty of loyalty and loyalty to your employer. This includes disclosing fraud committed by a colleague. If you don't and the scam is discovered later, you could face unpleasant questions or other consequences.
FAQ
Arbeitszeitbetrug vom Arbeitgeber: Wie handelt man als Angestellter?
Wenn Sie als Angestellter den Verdacht haben, dass Ihr Arbeitgeber Arbeitszeiten manipuliert, ist es wichtig, angemessen zu reagieren. Zunächst sollten Sie sorgfältig dokumentieren und alle relevanten Beweise sammeln. Anschließend sollten Sie das Gespräch mit Ihrem Vorgesetzten oder der Personalabteilung suchen, um Ihre Bedenken zu äußern und um Klärung zu bitten. Falls keine zufriedenstellende Lösung gefunden wird oder Sie sich unfair behandelt fühlen, können Sie sich an eine externe Stelle wie eine Gewerkschaft oder eine rechtliche Beratungsstelle wenden, um weitere Schritte zu besprechen. Es ist wichtig, dass Sie Ihre Rechte kennen und sich nicht scheuen, diese zu verteidigen, wenn Sie glauben, Opfer von Arbeitszeitbetrug zu sein.
Denn: Das Manipulieren der Zeiterfassung, um die Arbeitsstunden zu verändern, ist rechtswidrig und kann schwerwiegende rechtliche Konsequenzen haben, einschließlich Betrug und möglicherweise Urkundenfälschung. Gemäß § 263 StGB begeht jemand Betrug, der durch Täuschung einen Vermögensvorteil erlangt. Auch Computerbetrug gemäß § 263a StGB kann vorliegen, wenn elektronische Programme manipuliert werden. Sowohl Betrug als auch Computerbetrug können mit Geldstrafen oder Freiheitsstrafen geahndet werden.
Wann verjährt Arbeitszeitbetrug?
Die Verjährungsfrist – auch bei Arbeitszeitbetrug – wird gemäß § 78 StGB anhand des vom Gesetz vorgesehenen Strafrahmens festgelegt. Wenn das Strafmaß bis zu fünf Jahren Freiheitsstrafe beträgt, sieht das Gesetz gemäß § 78 Absatz 3 Nr. 4 StGB eine Verjährungsfrist von fünf Jahren vor. Nach Ablauf dieser Frist kann die Tat nicht mehr strafrechtlich verfolgt werden.
Arbeitszeitbetrug durch einen Kollegen wie verhalte ich mich richtig?
Wenn Sie bemerken, dass ein Kollege bei seiner Arbeitszeit betrügt, kann dies zu einem echten Dilemma werden. Es ist wichtig, angemessen zu handeln, da das Decken von Arbeitszeitbetrug ebenfalls nicht korrekt ist.
Zunächst sollten Sie das Gespräch mit dem betreffenden Kollegen suchen und ihn zur Rede stellen. Möglicherweise lässt sich der Verdacht aufklären, ohne weitere Maßnahmen zu ergreifen.
Wenn der Kollege jedoch uneinsichtig bleibt und der Arbeitszeitbetrug fortgesetzt wird, sollten Sie handeln. Denn: Gemäß Ihrem Arbeitsvertrag haben Sie eine Pflicht zur Treue und Loyalität gegenüber Ihrem Arbeitgeber. Dazu gehört auch, den Betrug eines Kollegen offenzulegen. Wenn Sie dies nicht tun und der Betrug später entdeckt wird, könnten Ihnen unangenehme Fragen oder andere Konsequenzen drohen.
