Monthly Archive: April 2014

Sick – but not too sick to work?

The Federal Labour Court (Bundesarbeitsgericht, BAG) ruled on April 9, 2014 (docket number: 10 AZR 637/13) that a nurse who was unable to perform nightshifts was not considered to be incapacitated to work but rather was entitled to work day shifts only. This decision was a victory for the employee. However, the real casualties are …

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Age Discrimination through Reduction of Working Hours

Age discrimination in the workplace is normally associated with discrimination against older workers. However, young(er) employees can also experience disadvantages tied to age. In a recent judgment by the Higher Labour Court (Landesarbeitsgericht, LAG) Hamm (January 30, 2014 – docket number 8 Sa 942/13), a reduction of working hours benefitting employees over 40 and 50 …

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The European Works Council – no paper tiger after all?

A supplier to the automobile industry, “Tenneco”, wanted to shut down its site in Gijon, a town in Northern Spain. The company group’s headquarters are situated in the U.S..  The European directive 2009/38/EG stipulates that a company is required to instruct and listen to the European Works Council about a planned operational change before implementing …

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Trade union initiated flash mob actions may be lawful

The Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) decided on March 26, 2014 (docket number: 1 BvR 3185/09) that so-called flash mob actions accompanying a strike which are initiated by a trade union do not violate constitutional rights of employers. A flash mob is a group of people who assemble suddenly in a public place, perform an …

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Severability clauses…a “door-opener” for non-competes?

A post-employment non-compete clause is only enforceable if the employer agrees to pay at least 50% of the employee’s previous remuneration (including base salary, bonus payments, car allowances) during the non-compete period, according to sec. 74 para 2 of the Commercial Code (Handelsgesetzbuch, HGB). Until now, it has been generally assumed that the employment contract …

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The separation of law firm lawyers and in-house lawyers…is this the end of occupational pension funds?

In a very significant ruling for in-house lawyers, the Federal Social Court (Bundessozialgericht, BSG) ruled on April 3, 2014 that in-house lawyers cannot be exempted from compulsory membership of the statutory pension insurance scheme (sec 6 para 1 No. 1 of the Social Security Code VI, Sozialgesetzbuch, SGB VI), as they are dependent employees and …

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German cabinet has endorsed a draft bill to introduce a nationwide minimum wage: More money for 3.7 million people

As part of the coalition agreement, the parties of the joint administration under the lead of Chancellor Angela Merkel planned to introduce a minimum hourly wage of EUR 8.50 (GBP 7.11; USD 11.55) (see our post dated December 20, 2013).  On April 2, 2014, the German cabinet endorsed a draft bill to introduce a nationwide …

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Fixed-term contracts: No reason necessary, for now…

Fixed-term contracts remain possible without a specific reason, for now. The parliamentary group of the Left Party recently presented a draft piece of legislation, proposing that fixed-term contracts should only be allowed to be issued for a specific reason. In the current version of the German Part-time Work and Fixed-term Employment Act (Teilzeit- und Befristungsgesetz, …

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Covert investigations and the risk for employers

A termination was void where the evidence supporting the termination was collected from the employee’s locker without the employee being present. In the case at hand, the employer, who runs cash & carry markets, suspected that one of its employees might have stolen goods. The manager secretly opened the employee’s locker during working time. The …

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Use it or lose it? Can employees carry over vacation beyond March 31?

As March 31 is a key date for the expiry of holiday entitlement in Germany, we want to provide you with a short update regarding holiday entitlements under German law. Pursuant to the Federal Vacation Act (Bundesurlaubsgesetz, BUrlG) every employee is entitled to a minimum of 24 paid days of vacation based on a 6 …

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