Employment Germany

Works Council’s right to know about work accidents also extends to external staff

By Volker von Alvensleben / 13 August 2019 13 August 2019 / Health, Independent contractor, Works Council

According to a judgment by the Federal Labour Court, the works council may request information about work accidents suffered by individuals who are employed by an external party, if these works accidents were suffered in connection with the operational infrastructure (judgment dated 12 March 2019, docket number 1 ABR 48/17). The company, a delivery service provider, used both its own staff as well as contractors to provide these services. When two contractors slipped and thus …

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Change in Work Constitution Act to Increase Employee Representation

By Dr. Astrid Schnabel LL.M. / 9 August 2019 9 August 2019 / Collective Bargaining Agreement, Employee Participation, Legislation, Works Council

Following a legislative reform earlier this year, flight crews’ rights to obtain employee representation through a works council have been improved. While employees from (almost) all fields of work can choose to elect a works council, sec. 117 of the Works Constitution Act formerly provided for an exemption for flight crews. Flight crews were only able to establish an employee representative body if their collective bargaining agreement provided for such representation. Consequently, only flight crews …

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OVERTIME COMPENSATION – ARE 9 DAYS VACATION ENOUGH?

By Dr. Henriette Norda LL.M. / 18 July 2019 18 July 2019 / Equal Treatment

1. The problem Over time, a complex matter often leads to disputes, sometimes even trials between employers and employees. The question whether employers may arrange overtime, but also how to reimburse it is one such highly controversial issue. On June, 26 2019 (docket number: 5 AZR 452/18) the Federal Labour Court (BAG) had to decide whether the plant-level agreement of “ver.di” (a large German service trade union) with its works council on overtime compensation meets …

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THE END OF SPECIAL RIGHTS FOR THE CHURCH?

By Dr. Henriette Norda LL.M. / 16 July 2019 16 July 2019 / Discrimination, Dismissal

1. The problem Equal treatment is not only becoming more and more important since #metoo a few years ago, but has influenced the European Union for nearly 20 years. On June 2000 the Council Directive 2000/43/ implemented the principle of equal treatment between persons irrespective of racial or ethnic origin into European Law. Since then more and more European and German Laws were brought into force to promote equal treatment between the sexes, ethnicities, religions, …

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Mass dismissal: Employer has to notify the Employment Agency prior to the delivery of the termination notice to the individual employees

By Thomas Wiedmann / 16 July 2019 16 July 2019 / Dismissal, Termination

On 13 June 2019, the Federal Labour Court (docket number 6 AZR 459/18) ruled that a mass dismissal notification can be effectively filed even if the employer has already taken the decision to terminate the employment relationships at the time of its receipt by the Employment Agency. In the event of mass dismissals and subject to the fulfillment of all other statutory requirements, terminations, however, would only be effective if the employer notified the Employment Agency …

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NEW CHALLENGES FOR VACATION ENTITLEMENT

By Dr. Henriette Norda LL.M. / 10 July 2019 10 July 2019 / Holidays, Vacation

1. The problem German vacation law has changed considerably in recent years. The most current question to be decided by both the Federal Labour Court (Bundesarbeitsgericht, BAG) and the European Court of Justice (ECJ) concerned the expiration of vacation entitlements. German law (Sec. 7 para. 3 German Vacation Act, BUrlG) provides that the outstanding vacation entitlement expires at the end of the year. If employees do not assert the vacation claim in time, it is …

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Micro vacation – a gigantic problem?

By Dr. Henriette Norda LL.M. / 24 May 2019 11 June 2019 / Company Practice, Holidays, Vacation

On March, 6 2019 the State Labour Court Baden Wurttemberg (docket number 4 Sa 73/18) decided that half day vacation does not fulfil the legal requirements where employees don’t have an entitlement to request such micro vacation. In the case at issue, the plaintiff filed legal cause against his employer demanding his right to be granted a half day vacation at least 8 times a year. The employer withdraw this request, arguing there was no …

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Member States must require employers to set up a time recording system

By Dr. Kai Bodenstedt LL.M. / 14 May 2019 11 June 2019 / Working time

On 14 May 2019, the ECJ held (docket no. C-55/18), that Member States must oblige employers by law to set up a system for recording the time worked each day. In proceedings between the Federatión de Servicios de Comisiones Obreras (CCOO) – a Spanish Union – and Deutsche Bank SAE concerning the lack of a system for recording the time worked each day by the workers employed by the latter, the National High Court of …

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German Regional Labor Court rules: Employer’s evidence of employee‘s breach of contractual duties admissible even though employer has violated data protection law when obtaining it LAG Baden-Wuerttemberg, ruling dated 6 June 2018 – 21 Sa 48/17 Appeal filed with the Federal Labour Court (Bundesarbeitsgericht), docket no. 2 AZR 426/18

By Dr. Henriette Norda LL.M. / 7 May 2019 11 June 2019 / Data Protection, Dismissal

With its judgment dated 6 June 2018 (docket number 21 Sa 48/17), the Higher Regional Labor Court of Baden-Wurttemberg (Landesarbeitsgericht Baden-Württemberg) found that an employer may use evidence proving an employee’s breach of a contractual duty against the employee, even though the evidence had only been accidentally discovered during a search of the employee’s IT-equipment. The court decided that the evidence could still be used, even if the original search itself was inadmissible pursuant to …

German Regional Labor Court rules: Employer’s evidence of employee‘s breach of contractual duties admissible even though employer has violated data protection law when obtaining it LAG Baden-Wuerttemberg, ruling dated 6 June 2018 – 21 Sa 48/17 Appeal filed with the Federal Labour Court (Bundesarbeitsgericht), docket no. 2 AZR 426/18 Read More »

Crowd Working and the Transparent and Predictable Working Conditions Directive

By Rodrigo Weihermann / 3 May 2019 11 June 2019 / Compliance, Independent contractor, Legislation

On 16 April the European Parliament voted to approve the Transparent and Predictable Working Conditions Directive, which is aimed at strengthening the rights of workers and improving working conditions by promoting more transparent and predictable employment whilst ensuring labour market adaptability. The Directive applies in particular to platform workers (aka crowd workers), but also covers workers including those in casual or short-term employment, on-demand workers, intermittent workers, and voucher-based workers. Genuinely self-employed persons should not …

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A1-form required for business trips abroad – significant fines may apply

By Saskia MacLaughlin / 15 April 2019 11 June 2019 / A1-form, Business trips

From January 2019, employees will now generally need to carry an A1 form whenever they are normally working in, or posted to, other EEA countries in order to avoid liability for social security contributions and potential fines. In general, an employee pays social security contributions to the country they are working in. However, employees from an EEA country working in another EEA country may continue paying social security contributions in their home country and will …

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Unpaid leave allows for reduced vacation entitlement

By Dr. Astrid Schnabel LL.M. / 1 April 2019 11 June 2019 / Holidays, Vacation

In its recent decision dated 19 March 2019 the Federal Labour Court ruled that periods of unpaid leave will not be taken into consideration when calculating statutory vacation entitlements (docket number 9 AZR 315/17). In the case at hand, the employee had taken unpaid leave from 1 September 2013 until 31 August 2015. Upon returning to work, she requested statutory vacation days for 2014. Under statutory law, employees are entitled to 24 days of paid …

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Termination agreements: Employees have no right of withdrawal

By Thomas Wiedmann / 28 March 2019 11 June 2019 / Sickness, Standard contractual terms and conditions of employment, Termination

On February 7, 2019 the Federal Labour Court (docket number 6 AZR 75/18) ruled that employees cannot withdraw a termination agreement even if it was concluded in the private apartment of the employee. In the case at hand, however, the termination agreement might be void if the fundamentals of fair negotiation (Gebot des fairen Verhandelns) have been ignored. The parties agreed to a termination agreement in the apartment of the plaintiff. The termination agreement comprised …

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Post-contractual non-compete obligation must not cover all activities for a competitor

By Till Basfeld / 20 March 2019 11 June 2019 / Managing Director, Post-contractual non-compete

In an indicative ruling dated August 02, 2018, the Higher Regional Court Munich (docket number 7 U 2107/18) has found that a post-contractual restraint which prohibited a managing director from working for a competitor in any way was invalid due to the lack of legitimate interests of the company. The managing director was therefore able to legitimately claim the invalidity of the non-compete obligation in the form of a preliminary injunction. The indicative ruling is …

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