Go west – damages for transferring personal employee data to the US?

As part of a judgement dated 25 February 2021 (docket number: 17 Sa 37/20), the Baden-Wuerttemberg Labour Court of Appeals (the second out of three levels of the German labor court system)  has clarified the requirements for an entitlement to immaterial damages in cases of a violation of the General Data Protection Regulation (GDPR). Over …

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Testing, not resting – Obligation to offer tests under the newly amended SARS-CoV-2 Occupational Health and Safety Ordinance

The ongoing quest to combat and prevent the further spread of the SARS-CoV-2 virus is currently impaired by the emergence and propagation of more dangerous virus variants. The Federal Ministry of Labor and Social Affairs (Ministry) has identified frequent testing in occupational environments as a means to prevent the spread of the virus earlier and …

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The Covid-19 Resolution of 22 March 2021 and its implications for employers

The joint video conference of chancellor Angela Merkel and the ministers for the German states resulted in a resolution (“Resolution”) which, at least in part, will need to be implemented by further legislative action at both state and federal level. For employers, the following issues are of relevance: May I open my business and have …

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Occupational Pensions: Launch of first so-called social partner model

Recently, the first so-called social partner model (“Sozialpartnermodell”) was presented in Germany. The model was initiated by a cooperation of two large insurance companies and was realised with the involvement of a large German trade union. Social partner models have their origins in a major reform of occupational pension law in 2018. They enable – …

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Stand-by time = working time?

By judgment of 9 March 2021 (docket number: C-580/19) the European Court of Justice (ECJ) has ruled that periods of stand-by time, in their entirety, are considered as “working time” where the constraints imposed on the employees during those periods objectively and very significantly affect their ability freely to manage the time during which their …

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Occupational Pensions: Pension benefits from Switzerland are subject to social security contributions in Germany

By judgment of 23 February 2021 (docket number: B 12 KR 32/19 R) the Federal Social Court (Bundessozialgericht) has ruled that benefits from a Swiss pension fund are subject to contributions in the German statutory health insurance and social care insurance if they are comparable to either a German state pension or a German occupational …

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Occupational Pensions: Federal Labour Court confirms its established ruling on limited liability in case of acquiring a company out of insolvency

By judgment of 26 January 2021 (docket number: 3 AZR 878/16, 3 AZR 878/17) the Federal Labour Court (Bundesarbeitsgericht – BAG) has ruled that the acquirer of an insolvent company is only liable for vested entitlements and claims to occupational pension that had been earned after the opening of insolvency proceedings. He is not liable …

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Occupational Pensions: Increase in pension accruals does not justify a reduction in pension benefits

By judgment of 8 December 2020 (docket number: 3 AZR 64/19) the Federal Labour Court (Bundesarbeitsgericht – BAG) has ruled that an increase in pension accruals (as a result of statutory changes in accounting law) does not justify a benefit-reducing adjustment of the pension commitment. Facts: The plaintiff (widow of a former employee) received a …

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Presumption of Discrimination due to Gender in Equal Pay Claims

If a woman’s pay is lower than the comparative pay of her male colleagues, there is a rebuttable presumption of discrimination due to gender. The Problem According to the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz), discrimination on the basis of certain characteristics is unlawful. However, it is often impossible for the person discriminated against to …

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SARS-CoV-2 Occupational Health and Safety Ordinance

In light of the continuously tense situation in the health care system due to the Covid-19 pandemic and steadily high infection figures, the Federal Ministry of Labor and Social Affairs has issued an ordinance on occupational health and safety (“SARS-CoV-2 Arbeitsschutzverordnung“, SARS-CoV-2 Occupational Health and Safety Ordinance) which will become effective on 27 January 2021. …

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Occupational Pensions: Principle of equal treatment does not apply to pension commitments for managing directors

By judgment of 25 November 2020 (docket number: 7 U 1297/20) the Munich Higher Regional Court [Oberlandesgericht München] has ruled that a managing director of a limited liability company [GmbH] cannot invoke the principle of equal treatment under labour law [arbeitsrechtlicher Gleichbehandlungsgrundsatz] if other managing directors have received a better pension commitment. The principle of …

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Occupational Pensions: Continuing liability for pension obligations after spin-off

By judgment of 22 September 2020 (docket number: 3 AZR 304/18) the German Federal Labor Court [Bundesarbeitsgericht – BAG] has ruled that the subsequent liability of a company involved in a spin-off according to the German Transformation Act [Abspaltung gemäß Umwandlungsgesetz]) with regard to pension liabilities also applies towards the German Statutory Insolvency Protection Fund …

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Occupational Pensions: European Court of Justice strengthens claims of pensioners in case of insolvency

By judgment of 9 September 2020 (docket number: ECLI:EU:C:2020:682; Joined Cases C-674/18 and C-675/18) the European Court of Justice has ruled that the settled case law of the German Federal Labour Court on the limited liability of the acquirer for pension entitlements in the event of insolvency does not apply without restriction. It is only …

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