In the wake of the "time clock" decision of the Federal Labor Court of September 2022, German lawyers are pushing for a timely reform of the Working Hours Act (ArbzG). The law, which, in addition to flexible working hours, primarily serves health protection, provides for a minimum rest period of eleven hours. For consultants such as litigators, especially if they are employed by law firms, this can be an immense disadvantage.

Marcus Jung

Editor in business.

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Any reaction to a pleading arriving late at night or the cooperation with offices in Asia and America, which is common in many commercial law firms, can be a violation of the ArbzG. According to the German Bar Association (DAV), this leads to an irresolvable conflict of interest among lawyers. "Compliance with the Working Hours Act can lead to the fact that the client's interest cannot be safeguarded," says Nathalie Oberthür, chairwoman of the DAV Employment Law Committee. However, employed lawyers are also professionally obliged to serve the client's interest, emphasizes the employment lawyer.

The exception contained in the Law on Working Time is unsuitable for the legal profession because it is precisely not applicable to regularly occurring crisis situations arising from the nature of the activity. The DAV calls on Federal Labor Minister Hubertus Heil (SPD) to create an appropriate balance between the "legal professional obligations and the necessary health protection".

In order to free employed lawyers from the rigid requirements, the Federal Association of Commercial Law Firms in Germany (BWD) considers equality with executives within the meaning of the EU Working Time Directive to be unavoidable. The legislator has already made use of the possibility with regard to auditors and chief physicians, write the lawyers Christof Kleinmann and Kathrin Reitner in a BWD position paper from last autumn. From their point of view, however, an implementation with the same content for commercial lawyers is not practicable, because most law firms cannot grant power of attorney due to their corporate form.

The association therefore calls for an extension to all liberal professions in which salaried occupational groups "can essentially freely determine their working hours". In case of doubt, this should be the case if the employed lawyer earns more than the contribution assessment ceiling (currently 59,850 euros). In a European comparison, this is common, according to the BWD, which refers to existing regulations in France and the Netherlands.