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The train drivers are about to go on strike in Germany. Again. And it may not be the last time.

Many people live 20-30 km from work and commute by train. There's no alternative to trains over such distances. Buses are either local (within a city) or connect only the biggest cities.

People who own cars can go by car, but this requires a driver's licence (and a car). People who own bicycles can go by bicycle, but this requires endurance (and a bike). All others are practically unable to get to work.

What does this mean for German employee? Is it necessary to use own vacation days (which may be out after a few such strikes)? Or are such strikes considered an extraordinary condition, such as a tornado or flood, and the absence of work for long-distance commuters will be justified and be considered as working hours?

I'm asking about how labour law regulates it, and not what alternatives people have (for example sick leave).

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    @PhilipKendall it's not a question about legal advice but about labour law, which is the part of the Workspace topic. Otherwise, all questions about overtime, sick leave etc. would be off topic. – user1023 Feb 19 '15 at 9:18
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    "Questions seeking legal advice should be directed to legal professionals." Nowhere does it say "except for labor law". Asking about alternatives (vacation, sick time, working from home, company-sponsored buses or carpools), or how to discuss this with your manager, or how to implement contingency plans at a company would be on-topic. – Stephan Kolassa Feb 19 '15 at 11:48
  • @StephanKolassa So if labour law is off-topic, there are for example 51 questions tagged 'vacation'. They are all off topic? Because vacation is purely legal (labour law regulated) issue... – user1023 Feb 19 '15 at 12:13
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    Please look at the questions tagged vacation. You will find that these are not about legal aspects. In particular, none of them say "I'm asking about how labour law regulates it". (If you do find a question that explicitly focuses on the legal aspects, please vote to close it.) – Stephan Kolassa Feb 19 '15 at 12:15
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    Moderator notice: Please take discussion about whether this question should be closed or open to The Workplace Meta instead of using comments here. – Monica Cellio Feb 19 '15 at 18:39
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I am not a lawyer, but according to this interview by Spiegel Online with a lawyer specialized in German employment law, public transportation strike is not a valid excuse to come late to work. Employers can cut pay in the short run, and could even pursue termination if the problem repeats.

What you could do to get to work on time despite the strike:

  • Find someone to drive you to work, for example a neighbor who works in the same city or a colleague who lives in or near your hometown (keep in mind that traffic will likely be heavier than usual).
  • Take a cab to work
  • Stay in a hotel near your workplace during the strike

The last two options are of course very expensive for you, so you could ask your company if they would cover the cost, even though they aren't required to do so. Also it might be hard to arrange them because during a public transportation strike there are likely many others in the same situation.

Should these options not be possible, you could come to an alternative agreement with your boss:

  • Take vacation days
  • Take unpaid vacation days, when you can afford it
  • When your job and your company allows it, ask if you can work from home
  • Stay home, but agree to compensate by working more hours in the following months
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    Taxi or hotel would at least be tax deductible in Germany. – gnasher729 Feb 24 '15 at 14:49
  • @gnasher729 Are you sure a taxi to work would be deductible? AFAIK your tax deduction for travel-cost to work is always based on distance alone, no matter what cost you actually have ("Entfernungspauschale"). – Philipp Feb 24 '15 at 15:04
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    @Philipp: If you can prove (just ask the taxi driver for the receipt) that you have spent more than the "Entfernungspauschale" in the year you do your taxes for, it is deductible. In this case, say the distance is 30km and you work 220 days a year that's 220*30*0,3€=1980€ tax deductible "Entfernungspauschale". Now if you paid 1500€/year for your train ticket then if you spent more than 480€ on taxis to get to work that year, you will get your train ticket plus taxi bills as a deduction, instead of the 1980€. – Sumyrda - Reinstate Monica May 3 '15 at 13:26
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Philipp's answer already covers the practical aspects well.

To add the legal perspective:

According to German labor law, if you positively cannot work, for reasons beyond your control, then the rules are:

  • The employer may cut your pay.
  • They are however not allowed to require you to work extra hours (at least not more than in other circumstances).
  • There may be additional consequences, up to termination. A single case of missing work (even for multiple days) because of a strike will probably not be sufficient, but if it seems likely that an employee will miss work repeatedly in the future (for example because of a difficult commute), that may be sufficient reason to terminate an employee.

This is based on Bürgerliches Gesetzbuch (BGB), § 326 Befreiung von der Gegenleistung und Rücktritt beim Ausschluss der Leistungspflicht, which is a general rule for contracts: If one side fails to fulfill a conctract for reasons beyond their control, the contract remains valid, but the compensation is adjusted accordingly.
See for example this overview article by Prof. jur. Michael H. Meub: § 10 Unverschuldete Arbeitsausfälle for a discussion.

That said, these are just the legal rules - these really only apply if you cannot find an agreement with your employer. In practice, it is usually better to negotiate with your boss/employer as soon as you become aware of the problem, as described in Philip's answer. Most reasonable bosses will know that it's neither party's fault and will try to find a solution that works for all involved.

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A strike is not considered legally as force majeure, since it doesn't usually prevent you from getting to work, but merely makes it either difficult or very expensive. There are no trains? Take a taxi. Or ask your friend to drive you.

If you can't commute (because, indeed, nobody wants to pay $500 for a taxi and few friends want to drive you to another city at 7 AM):

  • Contact your employer as soon as possible and explain why you can't commute.

  • Show that you've actually tried. “Sorry, I'll stay home today because it seems that train drivers want to go to a strike.” doesn't give a good impression. On the other hand, if you've actually at the train station and there is really no way you can get to work, your employer may accept it better.

  • If possible, commute, even if you'll be late. Staying at home is worse than being one or two hours late.

  • Suggest alternatives. “Would you like me to work from home?” or “I'm ready to work the next Saturday” leave a good impression.

Despite this, you may still suffer from strikes. In Belgium, strikes by train personnel cause many lay offs every year. In France, the fact that I had to have one hour commute while all of the other 100 employees had their own car was problematic as well when bus drivers were on strike.

In those situations, while the official reason for lay offs is not the fact that they were unable to come to work on a given date, this is still an element which may influence an employer to get rid of an employee. In other words, if you're in good relations with your employer, there are chances that you'll find a solution together (like telecommuting). If your relations are not so good and you are not in generally perceived as an irreplaceable resource the company should keep at all costs, the impossibility to commit to work can be among the reasons which will push the employer to fire you.

Another point to note is that some employers in countries/cities where bus/train driver strikes are common will be reluctant to hire a person without a car in the first place. Requiring a driver license for a position is legal, even when you obviously don't need one (for instance a company is close to a bus stop and your job doesn't require traveling).

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    I'm not asking for an opinion if it should or shouldn't be considered as force majeure, but if it is considered so. In other words, do I have any legal protection in such case? Could you expand the topic of lay offs every year in Belgium? Does it mean that many people are laid off because the weren't able to get work because of strike? This would partially answer my question, although about other EU states (namely, there's no such protection for example, in Belgium). – user1023 Feb 19 '15 at 12:31
  • @РСТȢѸФХѾЦЧШЩЪЫЬѢѤЮѦѪѨѬѠѺѮѰѲѴ: I edited my answer to provide more information about Belgium and France. German laws may differ. – Arseni Mourzenko Feb 19 '15 at 12:43
  • So well, actually, lack of driving licence may (and often is) considered a handicap? Belgium is quite near to Germany so it gives a big picture what could be expected. – user1023 Feb 19 '15 at 13:05
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    @РСТȢѸФХѾЦЧШЩЪЫЬѢѤЮѦѪѨѬѠѺѮѰѲѴ: it's clearly a sort of handicap, but without being officially an handicap (which leads to a legal notion of discrimination). For instance, I live in a small town in France and getting a job without a driving license is very hard. Nearly every job posting specifies that a driving license is required. – Arseni Mourzenko Feb 19 '15 at 13:07

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