A friend of mine has the following problem. He's working in an apprenticeship for a German company with 11 employees. Now, in such an apprenticeship you work 3.5 days a week, and have 1.5 days a week of school (1 day every week and another every other week). Generally speaking, work is from 8:00 to 16:30 (with 30 min lunch) or 8:00 to 17:00 (with 1h lunch). School is from 8:15 to 14:30 (with 1h 15min combined breaks). If an apprentice is a minor (under 18), the employer cannot request that he come in for work after school or work additional hours. If the apprentice is over 18 an employer can request overtime at his discretion.

The company where my friend is working is not aware that those over 18 are allowed to work overtime. His supervisor, who is also the owner, has told him in the past that he would have him come in if he was "allowed to". He expects that he'd be working at least 2 hours of such overtime every week.

My friend is now wondering if it's expected that he would advise that he is allowed to work overtime, considering that the only reason they're not asking him to do overtime is that they mistakenly think it's illegal.

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    Unfortunately, the whole premise of your question is incorrect. In Germany, during an apprenticeship overtime is only done voluntarily (if under 18 one can not do overtime even voluntarily), but can never be ordered by a supervisor. See dgbrechtsschutz.de/recht/arbeitsrecht/azubis/… for more information. Also, overtime of course has to be compensated or paid for. So although you are allowed to work overtime, you are not required to do so and this is quite another ethical situation. – dirkk Dec 7 '15 at 15:48
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    Comments are not intended to argue with the OP, show off how much more you work(ed) than them, or otherwise. Please take those discussions to chat, thanks. – enderland Dec 7 '15 at 16:13
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    @dirkk what Magisch is talking about is not overtime, but rather normal work hours. If school only lasts 6h, the employer can have the apprentice come in afterwards. Have a look at this page of the IHK Nord Westfalen – germi Dec 7 '15 at 16:14
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    @germi your last sentence is correct, but I highly doubt that is indeed the case here. First of, the OP specifically says "overtime", so you should have a very convincing argument that he is incorrect. Also, calculating the work hours this is a 38h work week, which fits perfectly with many German work contracts. If it is overtime depends on how many working hours are defined in the contract. – dirkk Dec 7 '15 at 16:21
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    @Lilienthal you introduced this whole overtime discussion with your well-ment edit. OP was correct in the first place with not naming it overtime and included a pretty accurate translation of the relevant law that describes the issue, just not marked as such. – simbabque Dec 7 '15 at 16:42

I've always found that ethics are a very touchy subject that is inherently subjective. Each person forms his or her own opinion about whether certain actions are ethical and that opinion is informed by upbringing, cultural norms, the legal framework and so much more. With that in mind, allow me to give you my informed opinion on this.

In general, an employer-employee relationship is based on trust and the idea that while on the job, an employee will work to preserve the interests of the employer. This includes the transparent sharing of information. Your friend's employer is operating on incorrect information and losing a degree of flexibility in his workforce as a result. The ethical thing is to correct their understanding and point out that he actually is allowed to work extra hours.

That said, is it unethical for your friend to fail to mention it? Yes, to some extent. But a number of arguments can be made to defend that approach:

  • work is getting done without overtime and he's putting in the hours he's getting paid for
  • if your friend's instinct is correct, he'd be working extra hours without real justification (or compensation)
  • it's up to management or HR to inform themselves of all relevant employment legislation
  • it's unlikely to reflect badly on him as he can proclaim a similar ignorance of the law (if for some reason this is not the case, he should probably avoid staying silent)

Keeping this in mind, my advice would be that your friend should not mention it. He should correct the misunderstanding if he had a good relationship with his manager/company and/or if he knew that they wouldn't use "overtime" to bring him close to the hours of a full-time employee. In my opinion that would constitute an abuse of the apprenticeship framework to get cheap labour, at the cost of your friend's study or personal time. I feel like this should lose that manager the employee's goodwill which would normally compel him to correct the misunderstanding.

Note: this post was an attempt to answer general version of the question and was written without knowledge of the specific legislation at play in the German system of apprenticeships. For an answer that's more suited to the specific situation of the OP's friend and the Auszubildender concept, have a look at nvoigt's excellent answer.

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  • could not say better. + 1 – gazzz0x2z Dec 7 '15 at 12:55
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    It maybe useful to know that an apprentice in Germany usually works full-time. It's part of our vocational system and not some ploy to get cheap labor. – germi Dec 7 '15 at 16:20
  • @germi I didn't mean to imply that the system itself offers cheap labor but that in this particular case, the OP's friend is working part-time (28 out of 38/40 hours) and is presumably paid part-time, but his employer would like to squeeze some more hours out of the deal. That seems to go against the spirit of the framework, as I understand it, with the employer benefiting at the cost of the employee's time and the country's taxes. – Lilienthal Dec 7 '15 at 21:49

He expects that he'd be working at least 2 hours of such overtime every week.

This would be illegal in Germany for any worker. Overtime can be used to deal with temporary changes, like maybe christmas season. It cannot and should not be used to change people's weekly hours. Any overtime must be regulated that on average you are not working more than 48h per week.

Please note that for apprentices (Azubis) in Germany, 5 hours of school count as 8 hours of work if they are minors. So if you are in school 08:00-13:00, your 8 hours for this day are full. The only way you can be ordered to come back and work is if some of your school hours are cancelled. For example if of the 6 "hours" of 45 minutes each, the last two are cancelled because the teacher is sick, your employer can have you come back and spend the rest of the 2/6th of your 8 hour work day in the company.

In practice, this is rarely done, because the travel time from school to the company premises does count against this, whether you are a minor and school lessons were cancelled or you are not. So in this example, you'd have to work a little over two hours when you finally arrive. If it takes an hour to reach the company, you will be there for little more than an hour on a day where nobody expected you. That's not really helpful. At least for my Azubis, the rule is that if school is cancelled or does not take the whole day, you win. You are not a full blown worker drone yet, go out, have fun and have a nice day.

What I wanted to say: make sure this is calculated correctly. Nobody needs to work after school on normal days, because it just does not make sense. Exceptions apply if you are not a minor and your company is very close to school.

Overtime cannot be ordered for Azubis, no matter how old they are. The IHK (chamber of commerce, organizer of this apprenticeship) says:

Der Auszubildende ist grundsätzlich nicht verpflichtet, Überstunden zu leisten.

(As a matter of principle, an apprentice is not obligated to work overtime)

You may mistake this with the regulations for minors, where it's even illegal to work overtime. If you are not a minor, you may indeed volunteer for overtime. But minor or not, nobody can make you work overtime in your apprenticeship.

The boss probably knows this.

He's doing this a lot longer. If it's in your favor, assume he is correct. Matter of fact, he is. Even if he wasn't, you cannot second guess every single thing he says. Ethically, you gain no personal benefit from this decision. You are not getting more money for example. So I don't think there is something wrong with assuming your boss is correct.

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  • Could you back up your claim about not having to work after attending school for five hours? As far as I know that's only relevant for apprentices under 18 years. If you're 18 or older, your employer (Ausbilder) can have you come in after school. – germi Dec 7 '15 at 16:22
  • dejure.org/dienste/vernetzung/rechtsprechung?Text=5%20AZR%20413/… explains how the way to work and breaks at school figure into work time. – simbabque Dec 7 '15 at 16:35
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    And the 5 lessons = 8 hours of work thing is only for under 18 year olds. It's Jugendarbeitsschutzgesetz: gesetze-im-internet.de/jarbschg/__9.html – simbabque Dec 7 '15 at 16:38
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    @voo: apart from tarifverträgen there should be no legal difference between those two. – kat0r Dec 7 '15 at 17:37
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    @voo: the relevant law (ArbZG) explicitly uses the word Arbeitnehmer, and therefore does not differentiate. Important: "Leitende Angestellte" (which would include workers) are exempt from this law. – kat0r Dec 7 '15 at 17:59

I cannot figure out why you are asking about whether something is "ethical". Ok, if the boss is a person who gets a heart attack if anyone tells him that he did something wrong, then correcting him and causing him to have a heart attack is unethical. Does the boss have a medical condition where nobody is allowed to correct him? In that case, it's unethical. I very much doubt this is the case here.

Now something about real life: People often don't like giving their true reasons. If your friend asks for overtime, maybe the boss just doesn't want to give him overtime, because it is expensive, because he wants to give someone else the chance to make extra money, and not your friend. Lots of possible reasons. But he doesn't want to say this, so he says "I would give you overtime if it was legal". If you make it clear that it is not illegal, do you think you will get overtime? You won't. The boss will come up with some other excuse. And eventually after he is running out of excuses he will tell your friend to his face that there is no overtime for him. By that time, the boss will also be majorly annoyed.

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  • As stated in the question, the overtime is unpaid, and the boss repedeatly said that he would require him to come in on the time specified if he was allowed to. There is no reason to doubt the veracity of his boss's statements. – mag Dec 7 '15 at 13:58
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    @Magisch where in the question does it state the overtime would be unpaid? – JAB Dec 7 '15 at 15:15
  • How does this answer the question in any way, shape or form? Maybe you don't understand why someone would want to know if their actions are ethical or not, fine; then you should simply ignore the question instead of answering completely besides the point... – user38070 Dec 7 '15 at 15:34

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