Uncategorized

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

By Dr. Kai Bodenstedt LL.M. / 23 March 2021 23 March 2021 / Covid-19, Days of Rest, Home Office, Uncategorized

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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Mass redundancies: A compensation of disadvantage could be offset by a social plan severance

By Thomas Wiedmann / 14 March 2019 11 June 2019 / Site closure, Termination, Uncategorized, Works Council

On 12 February 2019 the Federal Labour Court (docket number 1 AZR 279/17) ruled that a social plan severance and a compensation of disadvantage (Nachteilsausgleich) need to be offset. In March 2014, the employer took the decision to shut down its operation which the plaintiff was employed in. The employer informed the works council about …

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No Automatic Expiration of Holiday Entitlement Due to Missing Holiday Request

By Miriam Butzke / 16 November 2018 11 June 2019 / Uncategorized

Judgments With judgments dated 6 November 2018 (docket number: C-619/16; C-684/16), the European Court of Justice (Europäischer Gerichtshof, EuGH) decided that an employee’s entitlement to paid holiday must not automatically expire due to a missing holiday request. Rather, the holiday entitlement should only expire if the employer is capable of approving that the employee voluntarily …

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Remuneration of travel time for international assignments

By Miriam Butzke / 7 November 2018 11 June 2019 / Uncategorized

I. Judgment With its judgment dated 17 October 2018, the Federal Labour Court (Bundesarbeitsgericht, BAG) decided that in cases of an employee’s temporary international assignment the employer must remunerate the time required for outward and return travel as work (docket number: 5 AZR 553/17) II. Facts The plaintiff, who is employed by the defendant as …

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Judgement of the Federal Labor Court Regarding Dismissal due to Frequent Short Illnesses

By Miriam Butzke / 31 October 2018 11 June 2019 / Uncategorized

With its judgment dated 25 April 2018, the Federal Labor Court (Bundesarbeitsgericht, BAG) has maintained its constant jurisdiction, deciding that a disruption relevant for dismissal exists if, according to the employee’s health prognosis, costs for continued remuneration exceeding six weeks within one year are expected in future (docket number: 2 AZR 6/18). The court …

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Good news for parents? – Interpretation of social plan severance provisions

By Rodrigo Weihermann / 9 October 2018 11 June 2019 / Discrimination, Equal Treatment, Parental Leave, Part-Time Work, Remuneration, Uncategorized

If, in a social compensation plan, the severance payment calculation is based solely on the gross monthly basic salary of a single reference month, the decisive salary of employees who work part-time in that month during their parental leave, is the gross monthly basic salary which they would have been entitled to under their employment …

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EU Directive Draft “Whistleblowing”

By Miriam Butzke / 2 October 2018 11 June 2019 / Uncategorized

On 23 April 2018, the European Commission presented its draft directive “proposal for a directive of the European parliament and of the council on the protection of persons reporting on breaches of Union law”. The proposal is based on the official Council of Europe Recommendation on the protection of whistleblowers of 2014, according to which …

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Fixed-term employment contract for actor in crime series – justified due to the specific characteristics of the work performance

By Dr. Isabel Schäfer / 26 April 2018 11 June 2019 / Fixed-term employment, Uncategorized

According to the Federal Labour Court (Bundesarbeitsgericht, BAG) the employment contract of an actor in a crime series can be fixed-term according to Section 14 para 1 sentence 2 no. 4 of the German Part-Time Employment Act given the factual reason of the specific characteristics of the work as an actor (dated 30 August 2017, …

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Peak performances of professional soccer player up to retirement not to be expected

By Till Basfeld / 14 March 2018 11 June 2019 / Fixed-term employment, Uncategorized

In February 2016 we reported on a ruling of the Higher Labour Court Rheinland-Pfalz (Landesarbeitsgericht, LAG) in regard to a case of a goalkeeper who sued his former Bundesliga soccer club for unlimited employment and payment of missed bonuses (https://blogs.dlapiper.com/employmentgermany/2016/02/18/no-second-bosman-total-relief-at-bundesliga/). Almost two years later, the Federal Labour Court (Bundesarbeitsgericht, BAG) has now confirmed on 16 …

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The Federal Constitutional Court reviews strike ban for civil servants

By Rodrigo Weihermann / 27 February 2018 11 June 2019 / Government/Politics, Strike, Uncategorized

The Federal Constitutional Court (Bundesverfassungsgericht) is currently dealing with four constitutional complaints by teachers who had been punished for participating in protests and warning strikes. A judgment is expected in several months (docket numbers: 2 BvR 1738/12, 2 BvR 1395/13, 2 BvR 1068/14, 2 BvR 646/15). Under current German law, civil servants are not allowed …

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Reform of the German Occupational Pension Act (“Betriebsrentengesetz”)

By Georg Haberkorn / 23 November 2017 11 June 2019 / Pension, Uncategorized

Effective January 1, 2018, the German Occupational Pension Act will be reformed by the Act to Strengthen Occupational Pensions (“Betriebsrentenstärkungsgesetz“), adopted by the German Parliament on 1 June 2017. In 2002, the German legislator issued a difficult challenge to the area of occupational pension provision with the introduction of the so-called “Riester Reform”. Together with …

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Suspicion of pretended sickness and activities for a competing company generally justified surveillance by a detective and immediate termination for cause

By Till Basfeld / 13 November 2017 11 June 2019 / Uncategorized

A new judgment of the Federal Labour Court (dated 29.6.2017, docket number 2 AZR 597/16) supports previous judgments concerning termination based on suspicion of breach of duties and furthermore sheds light on the permissibility of carrying out surveillance on employees through a detective to clarify such suspicions. In the case at hand the employee and …

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Occupational Pensions: Free bus ticket for wife to be considered as pension

By Georg Haberkorn / 3 November 2017 11 June 2019 / Benefits, Pension, Uncategorized

By judgment of 23.06.2017 (6 Sa 173/17) the Regional Labour Court of Düsseldorf has ruled that with regard to the period from which the employee receives a pension, a free bus ticket provided by the employer to the employee’s wife is to be considered to be an occupational pension and therefore cannot be revoked. The …

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New Act on Remuneration Transparency

By Dr. Bernd Borgmann LL.M. / 13 June 2017 11 June 2019 / burden of proof, Compliance, Discrimination, Equal Treatment, Government/Politics, Legislation, Remuneration, Uncategorized

Following up our blog post from December 19, 2016 where we reported about a legislative proposal to promote equal pay between women and men, the Remuneration Transparency Act has now entered into force. Arguing that women still earn 7 % less than men even if statistics account for women frequently working part-time, less often climbing …

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Dismissal Protection Act not applicable to managing directors despite employee status

By Rodrigo Weihermann / 20 February 2017 11 June 2019 / Dismissal, Employment contract, Executives, Termination, Uncategorized

While recent EU law developments on the potential employee status of managing directors (cf. ECJ, June 9, 2015, docket no. C-229/14 – Balkaya) and decisions of the German Federal Labour Court regarding the procedural issue of giving managing directors access to the Labour Courts under certain circumstances have somewhat blurred the dividing lines between managing …

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