Wearing time – Legal definition and relevance
Die Wearing time is a legal term that holds specific significance in various areas of law, especially in labor law, concerning liability for work clothing, and in tax law. In the legal context, wearing time primarily refers to the period during which an item—often work clothing, personal protective equipment, or similar—may or must be used as intended. Correct determination and observance of the wearing time is particularly important for employers and employees, as it affects obligations and rights with regard to, for example, claims for replacement, cost coverage, tax depreciation, or responsibilities in the event of damage.
Wearing time in labor law
Conceptual distinction
In labor law, wearing time refers to the timeframe within which employees must put on and use personal equipment or work clothing provided or required by the employer. It is distinct from changing times and travel times and is particularly relevant when it comes to the obligation to compensate for such times.
Wearing time and remuneration
According to § 611a BGB, actual working time is generally subject to remuneration. Whether wearing time—especially the donning and doffing of work clothing—counts as remunerable working time depends on further factors, for instance whether wearing is mandatory and whether changing can only take place at the worksite (see BAG, judgment of 19.09.2012 – 5 AZR 678/11). In this respect, wearing time is an integral part of working time if the use of work clothing is explicitly stipulated by employment contract or operational instructions.
Liability and responsibilities
During the wearing time, the employee is under a duty of care for the equipment provided. In case of damage or loss, questions of liability are generally assessed according to the principles of employee liability. The assessment depends on whether the damage was caused by slight negligence, gross negligence, or intent. The employer remains responsible for the functionality and safety of the provided work clothing during the wearing time.
Wearing time in the context of product liability and safety regulations
Legal bases for protective clothing
The wearing time of personal protective equipment such as helmets, safety glasses, or safety shoes is legally regulated, in particular, by the Occupational Safety and Health Act (ArbSchG), the Ordinance on Industrial Safety and Health (BetrSichV), and the PPE Use Ordinance (PSA-BV).
Specification of wearing times
According to § 2 para. 2 PSA-BV, the employer is obliged to inform the employee for how long the personal protective equipment may be worn during the course of the day to avoid health impairments. The recommended maximum wearing time is determined by manufacturer specifications, occupational health findings, and the risk assessment.
Wearing time regarding liability and compensation claims
Compensation claim and reasonableness
The amount of compensation claims in case of damage to or loss of items during wearing time depends on the value of the item and the actual period of use. What is decisive is whether, considering the average period of use, the item would normally need to be replaced under typical circumstances.
Consideration in tax depreciation
Employers who provide work equipment take wearing time into account to determine the depreciation period (AfA). The typical useful life is set according to the official AfA tables. If the item is worn out beyond the specified wearing time, no further compensation claim exists; in cases of premature wear, special needs may exist.
Wearing time and social security law
Impact on occupational accidents
If an accident occurs during the wearing time, for example when putting on or taking off work clothing, it is considered a work accident in terms of social security law, provided the process is internally connected to the work. In statutory accident insurance (§ 8 SGB VII), such cases are explicitly recognized as insured.
Wearing time in collective bargaining and public service law
Collective bargaining regulations
Many collective agreements provide specific regulations on the maximum allowable wearing time, for instance, for regularly changed protective clothing. Compliance with these specifications is mandatory, and violations may give rise to claims for damages or compensation.
Special features in civil service relationships
In the public sector as well, wearing time plays a role, for example, regarding police uniforms or firefighting protective clothing. Here, special regulations exist regarding the maximum duration of wear, the obligation to use, and inspection intervals.
Wearing time in tax law
Depreciation and income-related expenses
In tax law, wearing time is considered when claiming income-related expenses or depreciating business-related equipment. Wearing time indirectly determines the amount of deductible expenses, for example, when the item is only partially used for professional purposes.
Conclusion
Wearing time is a central term in numerous areas of law. It affects both employers and employees as well as the public sector, since it touches upon issues of occupational safety, liability, tax treatment, and compensation obligations. Knowledge and compliance with statutory and contractual provisions regarding wearing time are essential for practical legal management in everyday life. Careful handling and correct observance of corresponding requirements are therefore of great importance for both business and individual interests.
Frequently Asked Questions
How is wearing time defined under labor law and which legal sources are decisive?
In the context of labor law, wearing time refers to the period during which employees are required to wear certain work clothing, protective clothing, or personal protective equipment while performing their work. The decisive legal sources for this are the Working Hours Act (ArbZG), the Occupational Safety and Health Act (ArbSchG), as well as relevant collective agreements and works agreements. Particularly relevant is § 2 ArbZG, which defines working hours within the meaning of the Act and may also include changing and preparation times—and thereby wearing time—as part of contractual or collectively agreed obligations. The Federal Labor Court has also clarified in several judgments (e.g., BAG, judgment of 06.09.2017 – 5 AZR 382/16) under which conditions wearing and changing times are considered remunerable working time.
Is wearing time generally to be remunerated as working time?
Whether wearing time constitutes remunerable working time depends primarily on whether donning and wearing the work clothing is expressly required by the employer’s instructions or by binding legal provisions. According to the case law of the Federal Labor Court, the wearing of special work clothing is to be remunerated as working time if the clothing cannot be worn privately and changing must take place at the worksite, for example, for hygienic or safety reasons. In such cases, wearing time counts as so-called ‘third-party beneficial’ time, since it is solely in the employer’s interest. If, however, wearing is voluntary and the work clothing could already be worn at home, there is basically no entitlement to remuneration for this time.
What obligations does the employer have with respect to recording and remunerating wearing time?
Employers are required to properly record the working hours of their employees (§ 16 para. 2 ArbZG). This includes—if wearing time is to be considered working time—recorded times for changing, donning and doffing protective equipment, as well as any travel times within the company. If the employer fails to take these times into account, the employee may claim retroactive payment. Provisions within collective agreements or existing works agreements often contain specific regulations on recording and remuneration of wearing time. Practical implementation ranges from flat-rate premiums to minute-by-minute recording to the consideration of specific time slots.
What is the difference between changing time and wearing time from a legal point of view?
Legally, changing time is the time required to put on and take off work clothing, while wearing time covers the period in which the employee is actually wearing the prescribed work clothing. Both times may qualify as working time if they serve the employer’s interests exclusively and must take place during company attendance. However, while changing times mainly relate to the beginning and end of the workday, wearing time refers to the actual duration during which the clothing must be worn while carrying out work duties.
Are there statutory limits to the daily wearing time of protective clothing?
The Working Hours Act does not contain any specific statutory limits on the wearing time of protective clothing. However, general duties of care and occupational safety obligations for the employer (§ 3 ArbSchG) require that burdens from wearing particularly heavy or uncomfortable protective gear, for example heat protection suits or chemical protection, be adequately reduced. For particularly restrictive protective clothing, collective agreements, risk assessments, or company agreements may provide for limitations on wearing times or additional breaks. Compliance with general maximum daily working hours (usually 8 to 10 hours) must always be observed.
To what extent can collective agreements or works agreements deviate from the statutory regulations regarding wearing time?
Collective agreements and works agreements may provide specific regulations regarding wearing time, which, within the scope of § 77 Works Constitution Act (BetrVG) and collective opening clauses, may deviate from statutory provisions, provided no mandatory occupational health and safety rules are violated. This concerns both the allocation as working time, the form of working time recording, and the specific method of remuneration. For example, flat-rate time credits or special premiums for wearing protective equipment can be established. The decisive factor is always the specific content of the collective or company rule, which may also go beyond the minimum standards of the Working Hours Act.
What co-determination rights does the works council have regarding wearing time?
According to § 87 para. 1 nos. 2 and 3 BetrVG, the works council has a co-determination right regarding the beginning and end of daily working time and matters of order in the workplace, which includes the wearing of certain work clothing. The works council can therefore help shape how wearing and changing times are managed, recorded, and remunerated within the company. This extends to drawing up schedules, designing changing facilities, and agreeing on specific regulations concerning recognition of wearing time as working time. If the employer fails to consider this co-determination right, the works council may enforce it through the courts.
