are void. This is a rule of thumb only and, depending on the complexity of the facts or legal questions, the process may take much longer but can also be shorter depending on how busy the competent courts are and if a hearing of evidence is required. In Germany, any mother or father who is in an employment relationship may apply for parental leave. In this case too, employees must prove the corresponding illness of the close relative by submitting a medical certificate to the employer. Prior to the transfer, the former employer or the new owner is required to instruct the employees affected by the transfer in writing regarding: 5.4 Can employees be dismissed in connection with a business sale? Unlike in other jurisdictions, a valid dismissal will end the employment without the employers obligation to make a severance payment, unless it is part of a collective restructuring measure covered by a social plan agreed with the works council. The objective of this law is to prevent or to remove discrimination based on race, ethnic origin, sex, religion or belief, disability, age or sexual orientation. You can find the leaflet in German at the bottom of this page in the Downloads section. 10.3 Do employers need to change the terms and conditions of employment to adopt a hybrid working model where employees split their working time between home and the workplace? See the video below, or read our Guide to Doing Business in Germany, for a quick overview of general business laws and regulations. The workers council is the representative body of the employees and it is statutorily granted specific rights of participation and codetermination. This is intended to avoid redundancies despite a reduced workload due to the COVID-19 crisis. Foreign companies not experienced in German labor and employment need to be aware of all legal requirements for staff employed in Germany. Trade unions are free associations of employees under private law on a supra-company basis which represent the collective interests of employees; in particular, by concluding collective agreements. The German Civil Code (Buergerliches Gesetzbuch or BGB) is regarded as one of the most influential pieces of legislation in the world. He may therefore only, e.g., screen the email inbox if there is a legitimate reason to do so, e.g., in cases where there are actual indications for the suspicion of a criminal offence or concrete indications for a breach of duty to work. In addition, the application of a collective bargaining agreement or individual provisions of a collective bargaining agreement can be agreed between the employer and the employee in the employment contract. the new owner) shall be invalid in accordance with 613a para. IT service); and caretaker services and emergency services to maintain operations, possibly also ensuring first aid in operations. As a rule, this means that the employment relationship continues with the same rights and obligations as before the transfer of the business. A minimum wage is mandatory for all employees in Germany. However, in many cases it is reduced to 35 till 38,5 hours by collective bargaining agreements, which usually stipulate that the working week is only from Monday till Friday. According to the Works Constitution Act, employees of business units of an enterprise which regularly employ more than five employees are entitled to set up a works council if at least five of them are older than 16 years of age and therefore qualified to elect and at least three of them are 18 years of age or older and therefore qualified to be elected. directors and board members. The draft of a law on mobile work (Mobile Work Act) provides for the following approach to improve the framework conditions For workers who want to be flexible and regularly work on a mobile basis: Gunther Mvers 2 BBiG). The Protection Against Unfair Dismissal Act. Many employers in Germany offer more holidays than this statutory minimum. Where there is no room for legal argument on either side, the usual severance pay is 0.5 months pay for each year of employment; however, if the employer has good prospects of success (and, in particular, where there is an operational shutdown with a preceding social plan and a settlement of conflicting interests), the payments are usually considerably lower. by transferring the person to a worse workplace. Furthermore, employers continue to have easier access to short-time work allowance (Kurzarbeitergeld) until the end of March 2022. There are quite a few laws setting out minimum terms and conditions of employment such as the Minimum Wage Act (9.82 gross per hour since 1 January 2022, to be increased to 10.45 effective 1 July 2022) and the Federal Vacation Act (20 vacation days per year for a five-day working week), etc. If you would ike to contact us An employee employed for more than six months who is employed by a company with more than 10 employees benefits from protection against unfair dismissal can claim that the dismissal is socially unjustified (cf. Already in the last legislative period, there were two draft bills by the responsible Federal Ministry, but they did not gain majority support. If the person does not comply with this request within a reasonable period of time, the public health authority can issue a ban on entry or activity against this person. The right to issue instructions may concern the content, performance, time and place of the work. The claim is not opposed by any urgent operational grounds. 8.5 Can an employer control an employees use of social media in or outside the workplace? 2.7 Are employees entitled to representation at board level? the envisaged measures towards the employees. We outline the top 10 of the most important changes in our Insight. There is no unified code of German labor and employment law. Trade unions and works councils are basically active at different levels. A job advertisement seeking a friendly young waitress demonstrates two forms of discrimination: the term young is a form of discrimination on grounds of age, while the female form waitress can be equated with discrimination on grounds of sex. What to observe from an employment law perspective in restructuring projects and transactions? Time limitations of up to five years, if the employee is at least 52 years of age and unemployed for at least four months (privilege of elder unemployed persons, 14 sec. Public and company public social media activities may be controlled by the employer. Can an employer transfer employee data freely to other countries? As of July1, 2022, employers are entitled to retrieve data (i.e., start and duration of the incapacity for work and, if applicable, the end of continued payment) from the health insurance fund when they become aware of an employee's incapacity for work instead of asking the employee to submit a sick note. Because of that, it is very important to distinguish between these types of workers and to determine the status of each worker individually. There is, in principle, no legal obligation to disclose the reasons for the termination in the dismissal letter and it is common practice to not share such reasons at all (or only verbally without going into any details). These statutes are applicable to white-collar workers, blue-collar workers and apprentices. BGB of the German Civil Code has been enabled in order to protect the employee. the termination is considered valid from the beginning. in case of fixed-term employment: the expected duration of the employment. Invalid terminations by the employer will result in reinstatement by the labor court unless the parties agree on a mutual termination agreement that provides for a severance payment to settle a termination dispute. According to 4 para. Although most of the rights given by the Works Constitution Act are related to information and consultation, the following co-determination areas exist: 2.6 How do the rights of trade unions and works councils interact? This is where the comparatively weak co-determination provisions of the One Third-Participation Act (Drittelbeteiligungsgesetz) come into play. the time or the envisaged time of the transfer, the legal, economic and social effects of the transfer on the employees and. This is now about to change: Companies can no longer retain their co-determination-free status in future if they continue to grow after conversion into an SE. To be legally effective, the termination notice must be signed by a person who is authorized to represent the company by its sole signature (e.g., managing director, CEO) or whose authority to give notice is generally known within the company. The second very important issue of German Labor Law is the law on workers councils. These key requirements are as follows. Where the Protection against Unjust Dismissal Act (KschG) applies, ordinary dismissals are only allowed for operational reasons, misconduct or personal reasons ( 1 sec. California's next wave of privacy legislation, the California Privacy Rights Act (CPRA), expands the freshly enacted California Consumer Privacy Act (CCPA). In general, German law prohibits the discrimination of employees on the basis of sex, religion or political beliefs, etc. While trade unions have the power to conclude collective agreements which apply to their employers who are bound by collective agreements, and which generally regulate working conditions on a sectoral basis, works councils are responsible for representing employees interests at company level. In any case, the individual circumstances of each case are decisive. In practice, these requirements will only be met in a few rare cases. Only employee associations are eligible for collective bargaining, which includes trade unions, which are also prepared to strike in extreme cases and which are capable of enforcing their rights vis--vis the employers. The most important thing to know about labor leasing in Germany is that a company or individual that leases out German employees as contractors must hold an Arbeitnehmerberlassung (AUG) license. This applies to both ordinary and extraordinary dismissals. 3.2 What types of discrimination are unlawful and in what circumstances? German employment law provides a complex system of employee representation. The social security system is regulated by the Social Security Code. This German employment law training course is relevant to international HR managers and directors in the UK who have responsibility for employees in Germany. Apart from this written form requirement, the company may need to seek prior consent from authorities or even the labour court, in case of employees enjoying special protection against unfair dismissal, or involve the works council, cf. Irrespective of their individual income and contributions, all insurants are largely and comprehensively protected against various life risks. Foreign companies not experienced in German labor and employment need to be aware of all legal requirements for staff employed in Germany. Law on Collective Bargaining Agreements, rotection Against Unjust Dismissals Act (Kndigungsschutzgesetz: KSchG), General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz: AGG), Part-Time and Limited Term Employment Act (Teilzeit- und Befristungsgesetz: TzBfG), Federal Paid Leave Act (Bundesurlaubsgesetz: BUrlG), Protection against Unjust Dismissal Act (KSchG). However, the most important rights granted by the Works Constitution Act are the codetermination rights in personal matters, such as hiring, transfers and dismissals of employees. The average working hours in Germany is 8 hours per day. Since the latter is not necessary for the employer to know, it means a great violation of the employees personal rights. Even if you have agreed a piecework rate with your employer, you may not earn less than the statutory minimum wage. to partial leave of absence for the care of a close relative in need of care in a domestic environment over a period of up to 24 months with a minimum weekly working time of 15 hours. This act also prevents discrimination in the treatment of part-time or fixed-term employees in comparison to full-time employees. Dr. Andr Zimmermann, a Certified Specialist for Employment Law (Fachanwalt fr Arbeitsrecht) and partner at Orrick's Dsseldorf office, heads Orricks employment law WebCMS sizeable employment law team, also distinguished through its proportion of women at almost 55%, further expanded the partner roster in January 2021 with the appointments o Get in touch. As a general rule, time limitations of employment contracts must be justified by objective conditions. Pregnant women and mothers up to four months after delivery ( 17 Maternity Protection Act). Employers and works councils must ensure that any discrimination against persons on the grounds of their trade union activities or employment is avoided. Employee representation at the operational level is guaranteed by the works council. German Labor and Employment Law: issues concerning the set-up of a company in Germany, 1. All other forms of notice (i.e. According to this provision, in the case of office work or comparable activities, the employer must offer employees the opportunity to carry out these activities at home if there are no compelling operational reasons to the contrary. The Act Regulating the Commercial Leasing of Employees. Whether and to what extent there will be a right to carry out the activity from home after the end of the pandemic is not yet clear. WebGerman labour law refers to the regulation of employment relationships and industrial partnerships in Germany . Horizons, a leading global PEO with offices in Germany, can help your company navigate these laws and get you set up quickly and compliantly. This document must include the following information: The employment contract does not have to be written in a language you understand. If no probationary period has been agreed and for the time following an agreed probationary period, the statutory minimum notice period is four weeks to the 15th or the end of a calendar month. Most recently, he has advised leading global technology companies such as GoPro, Pinterest, GitHub, Nvidia, Sabre, Snap and Splunk on various employment matters. ADVICE The Termination of Employment under German Employment Law requires in general specific legal advice with regard to the statutory requirements, especially the justification and the form. The applicant does not need to respond to inadmissible questions and is also permitted to give a wrong answer to the question. The termination violates selection guidelines according to 95 Works Constitution Act on the selection of personnel in the case of terminations. Underage close relatives in need of care are also entitled to time off work if care is provided outside the home environment. This article can act as a simple guide for employers to navigate German labor and employment laws when expanding in any capacity into Germany. Employers must ensure that discrimination does not take place. the name and address of the contracting parties. cover the following aspects: duration in terms of start and ending of the new model; working times including control of the working time, salary changes covering the extra costs for equipment, costs for power and internet connection; data privacy; and right to control, etc. Indirect discrimination: Discrimination against a person does not appear to occur on the grounds stated under sec. In a job interview, it would be unfair to ask a female applicant about her plans for a family. 1.5 Are any minimum employment terms and conditions set down by law that employers have to observe? The German income tax system is quite complicated since certain benefits or expenses can be deducted by the employee in his or her yearly tax declarations. The applicant must be an employee and have a German employment contract. In Germany, the employer is not obliged to establish a works council. If the employer provides appropriate training to the employees in order to prevent discrimination, this is deemed sufficient for the fulfilment of his/her obligation to provide (also preventative) protection to employees. The minimum statutory notice period for both, the employer and the employee, is four weeks counting back from the 15th or the last day of a calendar month ( 622 Civil Code). The statutory notice periods are staggered as follows, depending on the length of employment: In practice, employer and employee regularly agree on a longer notice period. Initially, they apply to everybody in the same way, however, as regards their effect, they are more discriminating for certain groups than for others. Finally, the employer must inform his employees about the workplace access regulations in an accessible form, if required. Indirect discrimination: if there are seemingly neutral regulations, criteria or proceedings that can, due to one of the aforementioned discrimination characteristics, place persons at a disadvantage in comparison to others in a specific way (unless the considered regulations, criteria or proceedings are factually justified by a legitimate target and the means for achieving this target are appropriate and necessary). This is then purely business correspondence to which the employer may have access at any time. The introduction of whistleblower protection measures in companies is therefore recommended. However, this statute is not mandatory and therefore in practice often limited or barred by contractual agreements. The Federal Act on Holidays entitles full-time employees to a minimum of 20 days of holiday per year. The works council must be consulted in detail prior to each individual dismissal and can object to it for certain reasons. Thus, they are mandatory and the employee has a direct claim against the employer to comply with the provision of the collective bargaining agreement. Otherwise, employees may be able to object to the transfer of their employment relationship to the transferee even years after the transfer of business. The workers councils have different information and consultation rights. Employees who care for a close relative or a close relative at home can also be granted complete or partial release from work for up to six months under certain conditions (care time). The protection of workers plays a key role in this. 2.4 Are employers required to set up works councils? Participation and co-determination rights must be differentiated. Should we hire employees or independent freelancers? 8.4 Are employers entitled to monitor an employees emails, telephone calls or use of an employers computer system? LUTZ | ABEL specialises in advising mostly medium-sized employers and covers the entire spectrum of individual and collective employment law. Contact the Customer Center of the International Placement Service (ZAV). WebEurope Germany Employment Employment covers both contentious and non-contentious employment matters relating to day-to-day business issues as well as mergers and takeovers. Operational change is the pivotal legal concept, which comes very close to a comprehensive definition of restructuring. The following acts may be considered to be the most important statutes: The Civil Code (Brgerliches Gesetzbuch: BGB) defines the employment relationship. According to 613a para. 111 of the German Work Constitution Act, so that the reconciliation of interests procedure applies. They are concluded between the employers association and the trade unions or between a single employer and the trade unions. 5 German Civil Code. In most cases, the members of the organisations of both sides conclude agreements which cover a particular industry within a certain region or within the entire territory of the Federal Republic of Germany. Instruction to discriminate: if a person is given an instruction which, based on a discrimination criterion, is deemed discrimination. The Act on Documenting Essential Applicable Conditions for Employment Relationships. In order to extend the scope of application of collective bargaining agreements to non-organised employers and employees, German law entitles the Secretary of State for Employment to declare such agreements as generally binding (Allgemeinverbindlicherklrung). This has to be done at least one month prior to the start of the part-time work requested by the employee. The main focus of his practice comprises employment aspects of transactions and restructurings. During maternity leave, the employee can claim full payment, part of which is compensated by the health insurance company. However, the works councils objection has no influence on the effectiveness of the notice of termination. However, there are three exceptions to the general rule that fixed-term contracts must be justified by objective conditions: Time limitations of up to two years, unless the previous employment contract was with the same employer (prohibition of chain employment contracts, 14 sec. However, the works councils consent to the termination is not required. economic matters (operational changes, e.g., reduction of operations or closure of the entire or important departments of the operation, mergers with other operations or split-up of operations). 4.3 What rights does a woman have upon her return to work from maternity leave? Doing Business in Germany: Benefits, Challenges, & Culture. This can start at 4 weeks notice and vary higher depending on how long the employee has worked at the company. Collective dismissals qualify as an operation change within the meaning of sec. In case of a business sale be it by way of a share or asset deal the employees are indeed automatically transferred to the buyer because of 613a para. WebAn employment law guide to employee rights in Germany, covering hours of work, rest breaks and rest periods, Sunday work, holidays and holiday pay, maternity and pregnancy rights, parental leave, carer's leave, force majeure leave, part-time workers, fixed-term workers, temporary agency work, posted workers, transfers of undertakings, insolvency of 2 Act Against Unfair Dismissal). A reconciliation of interests is an agreement between the employer and the works council on whether, when and how a change in operations proposed by the employer can be implemented. Most unions and employers associations are organised under umbrella organisations such as the Deutscher Gewerkschaftsbund (DGB), as well as the German Confederation of Employers Associations (BDA). Saturdays are thus included in the calculation. In the event that an employee objects to the transfer of the undertaking, his/her employment contract will not be transferred to the acquirer but remain with the former owner. Provisions for working hours and the protection of employees undertaking part-time or fixed-term contracts are found within the Part-time and Fixed-term Work Act (Teilzeit- und Befristungsgesetz). WebYour contacts for all issues relating to German employment law and employee data protection are Attorney Dr. Eric Uftring (Certified Specialist for Employment Law), Attorney Olga Stepanova and Attorney Lars Gerbe. Kurzarbeit allows companies to temporarily reduce the employees Although the reconciliation of interests and social plan (i.e., agreement between the employer and the works council on the compensation or mitigation of the economic disadvantages) are legally independent of each other, they are usually negotiated in parallel. In Germany, no specific legislation exists concerning background checks; the permitted room for manoeuvre must be determined on the basis of the existing legal situation. Differing from the previous stipulation, there is no obligation for the employee to firstly notify the company in order to try to remedy the situation, hence a whistleblower may immediately contact the authorities or the press. German employment law is often referred to as employee protection law and there are high requirements for unilateral termination of employment by the employer. Examples are, for instance, job advertisements with discriminating age limits, dismissal of a woman because of pregnancy (gender) or the refusal of membership at a gym on the grounds of ethnic origin. 3.1 Are employees protected against discrimination? Is consent from a third party required before an employer can dismiss? Otherwise, employers must give an employee at least a months notice before they can be officially terminated. Need more information? The employment relationship has existed for more than six consecutive months in the same establishment or company. more than 1 Medical attendance and safety related supervision, whereas thresholds vary from the Employers Liability Insurance Association (Berufsgenossenschaft), at least 5 Possibility of a workers council with one member, more than 10 Protection Against Unfair Dismissals Act applies, more than 15 Statutory right to claim a part time job, more than 20 Duty to employ at least one severely disabled person or to pay a monthly compensation charge. If employees cannot prove that they are vaccinated, the employer must inform the authorities; employees will in this case be prohibited to work and will likely not be able to ask for continued remuneration. In case of discrimination the employee may be entitled to claim for damages or compensation for non-pecuniary damages. The labour courts are competent to resolve litigation between the parties of an employment relationship. Furthermore, the employer can impose obligations on the employee that go beyond the employees statutory obligations, such as post-contractual non-competition, non-solicitation clauses or confidentiality obligations. Severely disabled persons only with the consent of the Integration Office ( 168 Ninth Book of the Social Security Code). As a rule, the employer bears the costs resulting from the work of the works council. Managing directors, board members and senior executives are not eligible to vote, do not count towards the threshold and are not represented by the works council. Any notice of termination (as well as a termination agreement) regarding an employment relationship must be in writing to be effective as required by 623 German Civil Code. From March 2022 on, the German Pension Insurance Federation only reviews, whether an employee is in fact employed or self-employed. Breaks are not considered working time and are therefore not paid. In contrast, terminations for operational reasons may have to be considered if the shortfall in work is likely to be permanent. Trade unions participation rights in collective bargaining law are contained in the Collective Bargaining Act and the Works Constitution Act (Betriebsverfassungsgesetz). Ordinary dismissals are subject to certain periods of notice. This issue is regulated by the Federal Paid Leave Act (BurlG). A self-employed person is someone who can typically arrange his/her work (occupation) and independently determine his/her working hours. 6.10 How do employees enforce their rights in relation to mass dismissals and what are the consequences if an employer fails to comply with its obligations? The claim was communicated to the employer in writing seven weeks before the reduced working time begins. The same goes for returning from paternal leave. The same applies to the transport of several employees to or from the workplace. We have particular expertise in the following areas: Employment Law, Banking and Capital Markets Law, State Aid and Antitrust Law, Commercial, Compliance, Corporate Law, IP, IT and Data Protection, Litigation and Arbitration, Public Law, Real Estate, Restructuring / Insolvency, VC / M&A and Public Procurement Law. Contact us without obligation either by phone or email. If notice is given by an authorized person, the original power of attorney has to be presented to the employee. 2.5 In what circumstances will a works council have co-determination rights, so that an employer is unable to proceed until it has obtained works council agreement to proposals? However, with effect from 24 November 2011, a pandemic-related provision on the offer to carry out work from home was reintroduced, initially for a limited period until 15 March 2022. When concluding an employment contract the parties often stipulate a probationary period of up to 6 months. The works councils rights are of varying intensity, i.e. Heres what you need to know before bringing agency workers onboard. Such agreement should i.a. Thus, in practice the free choice of law is quite limited and usually even if the employer is from abroad the parties apply German labor and employment law. Hire employees in 150+ countries, Hire EmployeesHire globally, without a subsidiary, Hire ContractorsPay contractors anywhere in the world, Global MobilityVisas for global employees, Horizons HealthFull coverage in 180+ countries, Our ClientsHelping businesses to reach their goals, International OfficesAsia-Pacific, Europe, & North America, Countries We CoverHire employees in 150+ countries, SaaS PlatformHire, onboard, manage & pay globally with one platform. Works councils guarantee employees far-reaching rights of participation and co-determination in social, personnel and economic matters and are the primary partners of employers in negotiating restructuring. The major sources are federal statutes, collective bargaining agreements, works agreements and case law of the labor courts. We have again been able to appoint four leasing, co-determination of employees and service agreements of managing What the information must contain is specified in detail in Article 15 paras 1 and 2 GDPR. Members of youth and trainee representations (according to works constitution or staff representation law). Under German employment law, employees enjoy strong protection against termination. According to section 1 of the German Collective Bargaining Act (TVG), a collective bargaining agreement is a written contract between one or more employers or employers' associations and one or more trade unions. The employment relations between an employer and an employee are settled by the German Good cause within the meaning of sec. In most of the cases the restructuring of companies fulfills the criteria of a so-called operational change according to the German Works Councils Constitution Act (Betriebsverfassungsgesetz BetrVG). In fact, a period of 4 up to 6 weeks per calendar year is usually granted by collective bargaining agreements. Germanys statutory social security system forces employees to pay social security contributions. Self-employed workers have no limitations on how many hours they can work a week. The business owner may be held personally liable if he or she does not transfer the payroll taxes and contributions. In order to do so, several statutory requirements have to be fulfilled. A new feature is the status determination in so-called triangular relationships, which is particularly important when using external staff from third party providers. In addition, they are obliged to take measures against employees who discriminate against other colleagues. Employment law issues: Protection Against Unjust Dismissals Act (Kndigungsschutzgesetz: KSchG) General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz: AGG) Part-Time and Limited Term Employment Act (Teilzeit- und Befristungsgesetz: TzBfG) Continuation of Remuneration Act (Entgeltfortzahlungsgesetz: EFZG) Federal Paid Leave Act (Bundesurlaubsgesetz: BUrlG) Documentation of Essential Employment Conditions Act (Nachweisgesetz) Posted Workers Act (Arbeitnehmerentsendegesetz), Occupational health and safety regulations: Maternity Protection Act (Mutterschutzgesetz: MuSchG) Working Time Act (Arbeitszeitgesetz: ArbZG) Federal Act on Payment of Child Raising Benefit and Child Raising Leave (Bundeselterngeld- und Elternzeitgesetz), Litigation and Court Procedures: Labor Court Act (Arbeitsgerichtsgesetz: ArbGG). Members of the parties to a collective bargaining agreement are bound by the conditions agreed upon. 3.6 What remedies are available to employees in successful discrimination claims? business transfers, downsizing, re-organization etc., it is essential for the companys management to involve employment law experts right from the beginning. All rights reserved. Works council members ( 15 Act Against Unfair Dismissal). This is granted on application by the nursing care insurance fund or the private compulsory nursing care insurance of the person in need of nursing care. At the same time, the jobs of the employees affected are to be retained for the duration of the short-time work. It is difficult to terminate employees in Germany. 6.3 What protection do employees have against dismissal? Companies carry out restructuring to avoid future crises, overcome existing ones or generally improve their competitiveness. There are no such special rules or mandatory training requirements to avoid sexual harassment. The main These aforementioned amendments are limited in time until the end of 15 March 2022. Your employer must also give you a pay slip. If the proof is not presented before or if there are doubts about the authenticity or the correctness of the contents of the proof presented, the management of the facility shall immediately notify the public health department and transmit the personal data of the person concerned to the public health department. The primary function of implementing labor laws is to provide equal opportunities to all employees, improve employee well-being and mental health, and provide safe working conditions without harassment or discrimination. However, in the absence of a post-contractual non-competition obligation, an employee may prepare to set up his own business before the end of his employment for the period after his departure. In Germany, placing employees that have been terminated on garden leave is still the most common practice and is generally considered a valuable option to best protect and secure the companys interest for various reasons.
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