Dr. Astrid Schnabel LL.M.

Update on local legislation implementing the Directive on the Posting of Workers

On 12 February 2020 the German Federal Cabinet adopted a draft law to implement the revised European Directive on the Posting of Workers in the framework of the provision of services. The revision of the Directive entered into force on 29 July 2018 after lengthy negotiations in Brussels (Directive 2018/957/EU amending Directive 96/71/EC). The revision of the Directive aims to improve the working conditions of posted workers while protecting the economy from wage dumping and unfair competition. The draft law implements the revised Directive. In the future, posted workers will benefit to a greater extent from working conditions that are …

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Crowdworkers are not employees under German Labour Law

Crowdworkers are not considered employees under German labour law under a ruling by the Higher Regional Labour Court of Munich on 4 December 2019 (docket number: 8 Sa 146/19). What are Crowdworkers? Crowdworkers are persons to whom so-called microjobs are offered via an Internet platform which they then carry out independently, if they accept the offers. According to the “Crowdworking Monitor” of the Federal Ministry of Labour and Social Affairs (BMAS) from 2018, around 4.8 percent of the eligible voters in Germany work as crowdworkers. The case The defendant operates an Internet platform and, among other things, carries out checks …

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Time Recording Systems Jumpstarted by the Works Council?

In an earlier ruling this year, the European Court of Justice held that European member states must require employers to introduce systems for recording the working time of their employees. However, since there is no German law stipulating time recording( with the exception of overtime recording duties) yet, typically it is up to the employer whether or not to introduce consistent time recording mechanisms. In the underlying case, the works council wanted to force the employer into negotiations for an electronic time recording system within the company. The employer argued that the works council did not have the right to …

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Change in Work Constitution Act to Increase Employee Representation

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 employed by companies bound by collective bargaining agreements were able to elect such a body. As of 1 May 2019, this exemption does not apply …

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Unpaid leave allows for reduced vacation entitlement

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 vacation based on a 6 day work week. If the employee works fewer than 6 days, the entitlement is calculated pro rata based on the …

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Appointment of a Conciliation Committee dealing with the subject of a No Smoking Policy

Under German law, works councils have so-called co-determination rights on certain subjects. This means that an employer must reach an agreement with the works council on these matters, such as rules and policies for employee conduct. Works council co-determination is, however, excluded if there are binding and final statutory provisions dealing with a certain matter. If no agreement can be reached through negotiations between the works council and the employer, a so-called conciliation committee will be established which can either reach an agreement or render a decision. The conciliation committee can be set up by mutual agreement, but it can …

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No co-determination rights of the works council for stock options issued by a foreign parent company

In a judgment dated 3 August 2017, the Higher Regional Labour Court of Hessen has held that a works council’s co-determination rights do not extend to stock option plans by an employer’s foreign parent company (docket number 5 TaBV 23/17).   Under German law, works councils have a co-determination right regarding remuneration principles. In this case, the foreign parent company decided annually and independently from the local employing entity whether stock options were to be granted, which employees would receive these stock options and, if so, how many. Local employment documents of the German employees did not include any reference …

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Employer obligation to provide individual target agreements to safety authority

Employers may be required to provide safety authorities with information on individual target agreements with their employees. In a judgment dated 28 February 2018, the Dusseldorf administrative court confirmed a corresponding order by the local safety authority (docket number 29 K 4191/16). In the case at hand, the employer offers consulting services. It is bound by a local collective bargaining agreement which provides for a regular weekly working time of 38 hours. Under the CBA, overtime of up to 3 hours per week can be agreed individually. Employees and their supervisors agree on annual individual targets (“Personal Business Commitments”). The …

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Information right of the works council independent of employee consent

According to a recent judgment by the Higher Regional Labour Court in Munich (docket number 11 TaBV 36/17) of 27 September 2017, the works council is entitled to receive information regarding the existence of pregnant employees in the operation. In the case at hand, the employer had provided employees with a right to “opt out” from forwarding the employer notification about their pregnancy to the works council. If employees objected to their information being forwarded, the works council did not receive such information due to privacy concerns. The works council argued that in order to be able to verify whether …

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Inadmissible evidence through installation of a keylogger

Using a software keylogger may not always be much help in supporting a termination for cause, as a recent case before the Federal Labour Court shows (judgment dated 27 July 2017, docket number 2 AZR 681/16). The employee had worked for the employer since 2011. When opening up its network, the company informed employees that internet and software use would be monitored. The company monitored keyboard use and also produced screenshots regularly. As a result of this, the company noticed that the employee had spent considerable parts of his working time on private use of the network. The company therefore …

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Revisions to the Maternity Protection Act

Recently, the German Federal Cabinet approved a draft law which will amend the Maternity Protection Act (Mutterschutzgesetz). According to the coalition’s plans, the reform will come into force on 1 January 2017. The key changes are: Increase of the period of protection (during which women cannot work) after the birth of a child with disabilities up to 12 weeks; Maternity leave for schoolgirls and students, and during internships; Similar level of protection throughout different professional groups; Maternity protection regulations will be better structured: The existing regulation which deals with the protection of mothers in their job (Verordnung zum Schutze der …

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Internships do not count towards the probationary period for vocational training

A previous internship will not count towards the mandatory probationary period for vocational training in order to effectively shorten the agreed probationary period (judgment of the Federal Labour Court, Bundesarbeitsgericht, BAG, dated 19 November 2015, docket number 6 AZR 844/14). Traditionally, many professions in Germany require a formal vocational training program which commonly takes three years. As part of this vocational training, trainees attend school but also work in companies under a training contract. When concluding such a training contract, German law provides for a mandatory probationary period between 1 and 4 months. During the probationary period, the training contract …

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Reform of the German Parental Allowance and Parental Leave Act

German law allows employees to go on paid parental leave in addition to mandatory paid maternity leave after childbirth. Until now, the German Parental Allowance and Parental Leave Act (Bundeselterngeld- und Elternzeitgesetz, BEEG) provided for a parental allowance for a maximum duration of 12 months of paid parental leave (14 months if the other parent decides to go on parental leave as well). The allowance is paid by the state and ranges from EUR 300.00 to up to EUR 1,800.00 a month depending on the employee’s prior income. Following reforms, an additional option dubbed “Parental Allowance Plus” will be available …

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Notice Periods May Be Tied to Years of Service

In a judgment dated September 18, 2014, the Federal Labour Court (Bundesarbeitsgericht, BAG) ruled that seniority-related notice periods are not discriminatory on grounds of age (docket number: 6 AZR 636/13). This judgment settles a long-term bone of contention with regard to the impact of equal treatment law on dismissal protection provisions. Sec. 622 of the German Civil Code (Bürgerliches Gesetzbuch, BGB) provides for statutory notice periods depending on the time of service. The statutory minimum notice periods for terminations are: • During the first 2 years of service, 4 weeks effective to the 15th or to the end of a …

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