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LABOUR RIGHTS

German court rules bosses can’t use keyboard-tracking software to spy on workers

Are bosses going too far when they use spy software to track employees' every keystroke? Apparently yes, according to a ruling by Germany's highest labour court on Thursday.

Published: 27 July 2017 15:39 CEST
German court rules bosses can't use keyboard-tracking software to spy on workers
File photo: DPA.

The Federal Labour Court ruled on Thursday that evidence collected by a company through keystroke-tracking software could not be used to fire an employee, explaining that such surveillance violates workers’ personal rights.

The complainant had been working as a web developer at a media agency in North Rhine-Westphalia since 2011 when the company sent an email out in April 2015 explaining that employees’ complete “internet traffic” and use of the company computer systems would be logged and permanently saved. Company policy forbade private use of the computers.

The firm then installed keylogger software on company PCs to monitor keyboard strokes and regularly take screenshots.

Less than a month later, the complainant was called in to speak with his boss about what the company had discovered through the spying software. Based on their findings, they accused him of working for another company while at work, and of developing a computer game for them.

He was fired that same day.

The complainant claimed that he had indeed been programming a computer game and done other work for his father’s company, but argued that this was mostly only during his work breaks. He said the work only took about ten minutes out of his day, and that over the course of four months, he had only spent three hours total on this outside work.

So the programmer took his case to court, arguing that the evidence used against him had been collected illegally.

The Federal Labour Court agreed with this argument, stating in the ruling that the keylogger software was an unlawful way to control employees. The judges added that using such software could be legitimate if there was a concrete suspicion beforehand of a criminal offence or serious breach of work duties.

Therefore the court determined that because the evidence used to fire the employee had been obtained illicitly the programmer’s termination should now be void.

The court further said that the fact that the employee admitted to using the company computer for private purposes did not justify the circumstances of the firing.

For members

WORKING IN GERMANY

Reader Question: Can I have a freelance side gig as an employee in Germany?

Going freelance in Germany - or even starting a side hustle - can be a rewarding and exciting challenge. But it can come with its own bureaucratic challenges. What are the rules around having a freelance gig if you already have a job?

Published: 30 April 2024 10:06 CEST
Updated: 30 April 2024 15:52 CEST
Reader Question: Can I have a freelance side gig as an employee in Germany?

Whether it’s to try out freelancing or simply to earn a bit of extra money, many people in Germany may have thought about trying out a side gig – or a nebenberufliche Tätigkeit – while they still have a job. It might be an especially attractive option for part-time workers looking to try out a new project as well.

Germany generally allows this, provided that your employment contract doesn’t prohibit it explicitly.

That’s why the first thing you should do if you’re thinking about starting a side hustle is to read your employment contract.

At first, you’re looking to see if side gigs are explicitly prohibited. If there’s no explicit mention of it being prohibited, the next thing to look for is whether you need to seek the company’s permission – possibly through their HR department – to take up your side gig. If you do, this will be explicitly spelled out in your contract.

Once you do that, you need to check and see whether your side gig falls under the Trade Act (Gewerbeordnung). If it does, you will have to apply for the corresponding business license. If it doesn’t, you can be classed as a Freiberufler – or freelancer – and won’t need a special licence to start your business.

You’ll need to do some homework on what kind of business you are – and you’ll need to register with the tax office. Photo: picture alliance/dpa/dpa-tmn | Benjamin Nolte

However in both cases, you will still have to register with your local tax office (Finanzamt). 

In Germany, some professions will require you to have a Befähigungsnachweis – “certificate of competence” – proving you have expertise in your area and are appropriately accredited. These include regulated trades like working as a financial advisor or real estate agent.

Other trades, like marketing services and hospitality, won’t need such a certificate, but you might still be classed as a Gewerbe – which brings some different rules with it. Those who belong to the so-called “new self-employed”, such as artists, writers and journalists, are Freiberufler and don’t need a trade licence.

READ ALSO: Everything you need to know about becoming a freelancer in Germany

Do I need extra insurance?

For your job as an employee, you already will have the necessary health, care and pension insurance – with your contributions from your income there getting taken off your payslip.

If you have a side gig, you remain insured through your main job and don’t need to take out additional insurance. Your contributions – based on the income from your main job – will remain the same.

This changes if your side hustle becomes your main hustle – measured by your working hours. As long as the number of working hours you spend on your side hustle amount to less than your main job, you don’t need extra insurance.

In most cases, having a side hustle in Germany won’t impact your health insurance eligibility or contributions. Photo: thirdman /Pexels

The exception to this is if you take on an employee who works more hours than a mini-jobber. Hiring a mini-jobber is still fine.

If your side hustle does become your main hustle and you’re publicly insured, you need to advise your Krankenkasse.

KSK: How creative freelancers can pay less for German health insurance

What income tax do I have to pay?

First up, Germany has a tax class basically designed for second jobs. It’s called Tax Class 6 and it exists alongside your other tax class. That means that the income from your main job will be taxed according to the rules of one of five different tax classes. Which one you belong to in this case depends on family variables like your marital status or whether you’re a single parent.

Tax class 6, however, doesn’t take any of these variables into account and exists only for your side income. As such, your main employment income will never be taxed according to tax class 6 and your side income won’t receive the breaks and credits that your main income will if you normally belong to a tax class that gives you any advantages.

Tax class 6 will apply to any income you earn on your side hustle above €538 a month. Anything you earn up to this amount though is exempt from additional tax.

It’s important to note that if you do earn more than the monthly €538 minimum on your side hustle and thus have income subject to Tax class 6, you’ll need to file a tax return.

EXPLAINED: What German tax class are you in?

Do I have to charge VAT?

If your side hustle is earning you €22,000 a year or less, you can class yourself as a “small firm” or Kleinunternehmer – and you don’t need to charge VAT on your invoices. This is also the case if you earn above this amount but your income is earned abroad or from foreign clients. 

If you earn above that amount and work with German clients, then you will need to charge VAT and submit VAT returns to the Finanzamt. There can be advantages in doing this though, as it’s through these returns that you can get VAT back that you spend on legitimate business expenses.

EXPLAINED: What are the best bank accounts in Germany for freelancers?

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