Nerf Guns in the Office: A Battle of Co-Determination

By Rupay Dahm, specialist lawyer for labour law, Berlin

In the age-old quest for fun in the workplace, some offices have embraced Nerf guns. The dart-shooting frenzy brings out the inner child in even the most serious employees. However, amidst the foam-dart chaos, a pressing question arises: Do works councils (Betriebsräte) have a right of co-determination when it comes to Nerf gun battles? Let's explore the realm of German Works Constitution Law (Betriebsverfassungsrecht) with regard to Nerf gun battles.

Order and Conduct in the Workplace (§ 87 Abs. 1 Nr. 1 BetrVG)

When it comes to any rules concerning the general order and conduct at the workplace, i.e. all rules that do not directly affect your work tasks or work instructions, the approval of the works council mandatory. Examples of such rules requiring co-determination can be:

• flirting prohibition at work,
• rules on who can use the parking spaces,
• drinking or eating ban at the work place,
• conditions for private use of company’s internet, telephone or e-mail,
• company rules for use of private devices (BYOD)
• compliance regulations,
• formalised sick return talks

Without the works council’s consent, such rules are invalid.

If you’re interested in what works councils can achieve, look at this article: What can works councils achieve - what not?

Shooting for health and safety? (§ 87 Abs. 1 Nr. 6 BetrVG)

Under section 87(1)(6) of the Works Council Constitution Act (BetrVG), the works council is responsible for co-determination on health protection and accident prevention issues. Nerf gun duels can be a risky affair. However, it is a risk that we even allow 8-year-olds to take. If the dart frenzy starts to create a hostile work environment (those foam darts can sting!), the works council can step in and address the rules of engagement. However, Nerf gun battles also serve as a stress-reliever and team-building activity. As the colourful foam darts whistle through the air and staff enjoy shooting each other, accumulated tensions and minor conflicts can vanish into thin air. So the toy feuds can confrontations might actually serve to protect health, as they improve the working atmosphere and reduce stress.

Nonetheless, there might also be those who feel disturbed by such toy wars and feel that the use of toy weapons in the workplace is inappropriate. This is where the works council comes into play, which, as the body representing the interests of the workers, has a say in the matter. If the works council has not yet concluded a company agreement on bullying prevention, it might be a good time to do so. Balancing fun, safety and wellbeing of everyone is the key to Nerf gun harmony.

Nerf Guns as a Social Facility (§ 87 Abs. 1 Nr. 8 BetrVG)

Pursuant to sec. 87 no. 8 of the Works Council Constitution Act (BetrVG), the works council has a say in the rules governing the use of social facilities. Social facilities are, for example, company canteens, company kindergartens, sports equipment, vending machines: whenever the employer grants additional benefits on top of the salary. Are Nerf guns a social facility similar to a cafeteria? Well, a fruit plate for everyone, a break room, playground equipment such as a foosball (kicker) or billiard table can also constitute a social facility subject to co-determination if they are provided by the employer free of charge. The works council must ensure that the rules of use are fair and that no one is disadvantaged. The same applies to Nerf guns: while they’re not directly a child-rearing facility, the question who may use company-owned guns, whether you’re allowed to “steal” them from you boss’ office and when you have to give them back could be considered as conditions for the use of a social facility. Everyone deserves a chance to partake in the Nerf gun extravaganza!

Nerf Guns and Teamwork Organization (§ 87 Abs. 1 Nr. 13 BetrVG)

Picture this: employees taking a break from spreadsheets and meetings to engage in epic Nerf battles. Now, this is where it gets interesting. Nerf guns can be viewed as tools that facilitate teamwork. They ignite creativity, communication, and collaboration as colleagues join forces to strategize and outwit their opponents. It fosters camaraderie, teamwork, and a much-needed dose of laughter. It's essential for the Betriebsrat to ensure that the playing field remains fair, inclusive, and voluntary. If the Nerf gun battles become a regular part of the office's teamwork dynamics, the works council has a right of co-determination because, on the other hand, even playful excesses of violence can also disturb the atmosphere and cooperation. It is therefore the task of employer and works council to design the rules in such a way that harmful group dynamics, mobbing etc. are avoided.

Freedom vs. Clarity: Navigating the blurred boundaries of work and fun

In the ever-evolving landscape of modern workplaces, the lines between work and play are becoming increasingly blurred. The concept of unlimited breaks and holidays (as is actually done in some companies) may sound enticing. However, with this newfound flexibility comes a need for clarity regarding boundaries and to establish clear guidelines to avoid misunderstandings and potential issues. Foosball tables, the epitome of office enjoyment, bring joy and camaraderie to the workplace. But how long can one indulge in a friendly match before it raises eyebrows? While the absence of strict rules can be liberating, it can also lead to uncertainty. Without established rules, the line between a quick break and excessive playtime becomes hazy. For instance, if you have the freedom to take as many breaks or holidays as you desire, does that mean you're expected to be available indefinitely, even after work hours? The works council faces the challenge of defining limits and balancing work and fun together with the management.

Choose your weapon: Calling the conciliation board (Einigungsstelle)

The Works Constitution Act was not specifically designed with foam-dart warfare in mind. However, wherever the works council has co-determination rights mentioned above, it can also appeal to the conciliation board (Einigungsstelle) if otherwise no agreement with the management can be found. This also applies to Nerf gun regulations. Considering the interests of both employees and the company. Listening to the staff’s fears and wishes, compromise, and a sprinkle of humour can pave the way for a harmonious Nerf gun existence.

The Grey Areas of Fun: Defining Boundaries for Nerf Guns

Now, let's circle back to the beloved Nerf guns. While the thrill of dart battles can be invigorating, it's essential to establish rules and expectations. A comprehensive policy should address issues such as safety guidelines, designated play areas, voluntary participation: The right to say no and to have it respected is essential. The works council can involve all staff members in discussions in order to find the sweet spot where Nerf gun battles foster team spirit while ensuring that everyone to still feels comfortable. Works council and employees must engage in open dialogue to define clear boundaries that accommodate both individual enjoyment and collective success. Regular feedback loops, transparent communication, clear persons to contact if something doesn’t feel right could be part of a works agreement (Betriebsvereinbarung) on Nerf gun use.

Conclusion:

While works councils hold significant influence over workplace matters, the inclusion of Nerf guns in the equation presents a unique challenge. The jurisdiction of Nerf guns within the framework of the Works Constitution Act can be debated with legal expertise or with a weapon in your hand. In the era of blurred boundaries between work and fun, works council, staff and management must find a delicate balance that allows for flexibility while maintaining clarity. Establishing clear guidelines is therefore crucial for fostering a positive work environment. So, dear works council, as you embark on your quest for co-determination, remember to tread the fine line between fun and respect when choosing between the conciliation committee or another fun weapon.

So, grab your Nerf gun, aim for empowerment, and find the sweet spot where work and fun converge. May the foam darts fly in harmony, and the spirit of teamwork and workplace democracy be forever embraced!