european-union germany
Is there a time after which I can leave when I can&#39;t get in the office?
<p>Today my boss was 20 minutes late to work and he has the only key to the office. I can only go in and out after the door has been unlocked so I had to wait outside the office.</p>
<p>While I was waiting for him to show up, I was wondering if there is a legal time after which I would be allowed to leave. Today the sun was shining, so it wasn't really an issue for me to wait outside, but I can imagine that with worse weather, waiting a few hours might be impossible.</p>
<p>There is no way for me to contact my boss, since I do not possess knowledge of his cell number or any other means of contact.</p>

<p>There is no legislation in Germany that explicitly states how long you have to wait in such a situation.</p>
<p>First let's look what happened:</p>
<p>According to your work contract, you are obligated to be available for work and follow the directions of your employer. Let's not go into nuances of the latter duty, because they depend on what type of work you are doing. Your employer is obligated to pay you if you fulfill your duties.</p>
<p>What happened is called <em>Annahmeverzug</em> (default of acceptance) in German civil law (<a href="https://www.gesetze-im-internet.de/bgb/__615.html" rel="nofollow noreferrer">§ 615 BGB</a>):</p>
<blockquote>
<p>Kommt der Dienstberechtigte mit der Annahme der Dienste in Verzug, so
kann der Verpflichtete für die infolge des Verzugs nicht geleisteten
Dienste die vereinbarte Vergütung verlangen, ohne zur Nachleistung
verpflichtet zu sein. Er muss sich jedoch den Wert desjenigen
anrechnen lassen, was er infolge des Unterbleibens der Dienstleistung
erspart oder durch anderweitige Verwendung seiner Dienste erwirbt oder
zu erwerben böswillig unterlässt. …</p>
<p><strong><a href="https://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p2582" rel="nofollow noreferrer">English translation:</a></strong> If the person entitled to services is in default in accepting the services, then the party owing the services may demand the agreed remuneration for the services not rendered as the result of the default without being obliged to provide cure. However, he must allow to be credited against him what he saves as a result of not performing the services or acquires or wilfully fails to acquire through use of his employment elsewhere. …</p>
</blockquote>
<p>If your employer doesn't enable you to work, they have to pay you for your time. You don't have to make up that time. If you save money by not working or had the opportunity to earn money by other means<sup>1</sup> during that time, this can be deducted from your pay.</p>
<p>Now, the question is how you fulfill your duty of being available for work. This depends on the specifics and really can only be answered by a lawyer or court (and IANAL). You do not need to endure hardships but have to accept reasonable inconveniences. Thus, you can leave if waiting becomes more than an inconvenience (usually that will be caused by weather or by bodily functions). If you leave, you should still be available for work unless that becomes unreasonable, e.g., because you could use that time to earn money by other means.</p>
<hr />
<p><sup>1</sup> Usually, it can be safely assumed that you don't have that opportunity. However, a daytaler might easily have that opportunity.</p>

<h2 id="at-common-law-you-must-comply-with-the-lawful-and-reasonable-directions-of-your-employer-vj5v">At common law, you must comply with the lawful and reasonable directions of your employer</h2>
<p>Your employer has directed you to be at the office at a specific time, stay for a period and work at the tasks that form part of your job. In normal circumstances, this is both lawful and reasonable.</p>
<p>There may be circumstances where the directions would be unlawful; for example, if it was unsafe for you to remain in the building because it was on fire. However, the circumstances you describe are unlikely to be unlawful; they might be if the weather was such that it posed a risk to your health and safety.</p>
<p>So, the more apt question is where, if any, is the point at which waiting for your boss to turn up becomes unreasonable?</p>
<p>At first blush, they are paying for your time so your workday belongs to them. If they want to waste their money paying you to sit on the porch, that’s up to them.</p>
<p>However, you are not an automaton and are allowed to display initiative. You could have:</p>
<ul>
<li>tried to get into the building to start work. Maybe someone left a window open?</li>
<li>leave a note on the door and wait in more amenable surroundings like the cafe down the street or your car.</li>
<li>performed job tasks that you can do while being locked out. We don’t know what you do so we don’t know how feasible that is: if you’re a panelbeater you probably can’t do this, if you’re a sales rep, you can make calls outside.</li>
<li>tried to find your boss.</li>
</ul>
<p>As for leaving, you can clearly do so when knock off time comes around. It may also be reasonable to do it earlier but the exact point where that happens is I’ll-determined. 20 minutes is clearly not long enough but 3 hours might be ok.</p>

<p>The situation you describe will fall within:</p>
<blockquote>
<p><strong>Störun­gen des Be­triebs­ab­lau­fes</strong></p>
<ul>
<li>Das Be­triebs­ri­si­ko und das Wirt­schafts­ri­si­ko trägt der Ar­beit­ge­ber.</li>
</ul>
<blockquote>
<p><strong>Disruptions in the operational process</strong></p>
<ul>
<li>The employer bears the operational risk and the economic risk.</li>
</ul>
</blockquote>
</blockquote>
<p>A straitforward answer as to how long you must wait will not be possible, since it will be based on the circumstances.</p>
<p>You must make yourself available to the employer. You have done so by arriving. You have been prevented from working for reasons caused by the employer, therefore must be compensated by the employer (<a href="https://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p2582" rel="noreferrer">§ 615 BGB</a>).</p>
<p>Since you will be paid, you are expected to wait for a reasonable amount of time that will depend on the situation and should be documented.</p>
<p>Waiting in a nearby café and returning to check again is also a possibility.</p>
<p>If you leave, write a note showing you have made yourself available and place in a letterbox.</p>
<hr />
<p><strong>Sources</strong>:</p>
<ul>
<li><a href="https://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p2582" rel="noreferrer">Section 615 - Remuneration in the case of default in acceptance and business risk, German Civil Code (BGB)</a></li>
</ul>

<p><strong>Answer for the United States</strong></p>
<p>You can leave at any time. However, your employer can discipline you for doing so in most circumstances, including the situation you've described.</p>
<p>There is no federal law in the US that allows you to leave without consequences.</p>
<p>There may be state laws or union agreements that apply. Most states won't protect you either, but yours might. You can contact your state's department of labor. This would be the state where the company operates, if you live and work in different states.</p>
<p>In the US, if your employer requires you to remain for any period of time, they must pay you. It doesn't matter whether they have a general policy or have issued specific instructions for this particular incident.</p>

<p>Let's assume you are supposed to be at work from 8am to 5pm with several breaks, and you get paid for that. And your boss, who is the only one with keys, isn't there at 8am, and not at 8:30am, and not at 9am. You decide to take the train back home. At 10am your boss arrives (with a huge hangover, I assume) and unlocks the door. You're not there.</p>
<p>If you had waited until 5pm, and the boss hadn't arrived at all, then your boss would have had to pay you for working all day, even though you didn't work.</p>
<p>If you had waited until 10am when the boss arrived, with German law you would then have to work until 5pm like normal, and the boss would have to pay for the full pay but couldn't force you to work a full day, only until 5pm.</p>
<p>If you left at 9am, and the office was available from 10am to 5pm, then it seems you were not available for work, and the company wouldn't have to pay except for the hour you were there. Your absence from 10am to 5pm is your own fault.</p>
<p>If it was raining outside, or you needed a toilet, you'd be perfectly entitled to find a nearby dry place with a toilet where you can wait, and check regularly if the office has opened, or leave a note how you can be contacted. I would expect you to contact your boss anyway. Actually, if you contacted his home and found that he left 7am and isn't at the office at 10am, and this has never happened before, someone might want to inform the police.</p>
<p>I think at the point where you leave, you can't expect to get paid anymore.</p>
