In the hospitality industry, flexibility is not just a virtue, but often a necessity. Whether dealing with short-term staff shortages, seasonal fluctuations, or unexpected guests, the option of employing staff “on call” offers many businesses valuable planning flexibility. However, this very flexibility also harbors legal pitfalls that, if handled incorrectly, can lead to problems with social security agencies and labor courts. This article explains how to structure on-call work in a legally compliant yet flexible manner.
The legal framework for on-call work is clearly regulated in the Part-Time and Fixed-Term Employment Act (TzBfG), particularly in Section 12. As a general rule, if the employment contract lacks a specific agreement regarding working hours, the employee’s regular working hours are assumed to be 20 hours per week. This means that without a clear agreement, the tax office and social security authorities will assume that the employee works this number of hours on a permanent basis. To avoid this assumption and to ensure genuine flexibility in on-call work, a precise contractual agreement is essential.
Such an agreement should first define the maximum amount of overtime that can be called upon. The law permits offering a maximum of 25 percent overtime in addition to the agreed working hours. This means that if an employee, for example, is contractually obligated to work 20 hours per week, the employer may only request a maximum of 5 additional hours of overtime. This regulation provides a degree of protection for employees, preventing them from being forced into significant overtime work unprepared and without sufficient planning.
Another important aspect is the notice period. The employer must inform the employee of their work schedule at least four calendar days in advance. This notice period allows the employee to adjust their personal plans to the work schedule and prevents short-notice and spontaneous shifts without prior notice. For restaurant owners, this means that a certain amount of advance planning is necessary to avoid legal issues.
The importance of these clear regulations lies not only in protecting employees but also in avoiding consequences under social security law. In cases of unclear or missing agreements, the social security agency can classify the employee as subject to social security contributions, even if the employer had planned otherwise. This can lead to back payments and additional costs, which are often difficult to manage, especially in the hospitality industry.
To ensure your on-call work arrangements are legally compliant, you should carefully review your employment contracts and amend them if necessary. A clear, written agreement regarding regular working hours, on-call availability, and adherence to notice periods will protect you from unpleasant surprises. Furthermore, it is advisable to document on-call availability as transparently and comprehensibly as possible to be prepared for audits by social security agencies or the tax office.
Leverage the flexibility of on-call work to your advantage, without losing sight of the legal framework. A well-structured contract provides planning security for you and your employees while ensuring smooth operations – from breakfast cafes to upscale restaurants.
Let’s work together to optimize your payroll and contract management so you’re always on the safe side when it comes to on-call staffing. Feel free to contact us for a personalized consultation – we’ll help you plan your workforce flexibly and legally.
