EU Directive Draft “Whistleblowing”

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 Member States should have a legal and institutional framework to protect persons who, in the context of their industrial relations, …

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Legal Useability of Recordings from Open Video Surveillance

By its decision of 23 August 2018 the Federal Labor Court (docket number 2 AZR 133/18) facilitated video surveillance at the workplace. Legally and openly created recordings do not have to be deleted by the employer within a few days. According to the Federal Labor Court, they can be evaluated several months later. Under data protection law employers are in principle entitled to use video cameras to publicly monitor accessible sales areas in order to …

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Imminent invalidity of limitation periods

In a Judgment dated 18 September 2018 the Federal Labour Court ruled that limitation periods, which do not exclude a claim for the Minimum Wage (Mindestlohn) according to the Minimum Wage Act (Mindestlohngesetz), are invalid. This results in the ineffectiveness of thousands of limitation periods in employment contracts. In Germany, limitation periods within which a claim must be asserted are commonly agreed in employment contracts. These generally amount to three months and are therefore considerably …

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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 …

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Addressing applicants “who are about to graduate”, asking for “very good German and English language skills” as well as a description of being a “young, dynamic company” is in general non-discriminatory

On 23 November 2017 the Federal Labour Court (Bundesarbeitsgericht, BAG) ruled in two parallel proceedings, each with the same plaintiff, on compensation claims for an alleged infringement of the principle of non-discrimination under the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, AGG) on the basis of two job advertisements. The first position required a completed degree, or that the applicant was about to graduate, as well as very good German and English language skills (docket number …

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Current case law of the Federal Labour Court on forfeiture periods

In June 2018, the Federal Labour Court (Bundesarbeitsgericht, BAG) dealt intensively with forfeiture periods. The judgments addressed: The date when the deadline starts to run (07 June 2018; docket number 8 AZR 96/17); The suspension due to settlement negotiations (20 June 2018; docket number 5 AZR 262/17); and The entitlement for statutory minimum wage during the period of incapacity for work despite forfeiture periods under tariffs (20 June 2018; docket number 5 AZR 377/17). Start …

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Transitional payment prior to retirement to be considered as an occupational pension

By judgment of 20.03.2018 (3 AZR 277/16) the Federal Labour Court has ruled that a transitional payment (taking into account pension payments) that is granted to a former employee during the first six months after their retirement is to be deemed to be an occupational pension and is, therefore, covered by the German Pension Insurance Association (Pensionssicherungsverein). The former employee (plaintiff) was granted a transitional payment on the basis of a works agreement by his …

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Minimum wage increase

The statutory minimum wage increases: to 9.19 euros on 1 January 2019 and to 9.35 euros per hour on 1 January 2020. This has been decided by the minimum wage commission. The increase is higher than expected. The minimum wage is currently 8.84 euros gross per hour. Every two years, the Minimum Wage Commission (which consists of representatives of employers, unions and science) advises on adjusting the amount. . In doing so, it examines the …

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Change of case law for time limit contracts – Time limit without reason in case of previous employment always inadmissible

  I. General Problems of time limit contracts The agreement on a time limit for the employment contract often leads to problems in practical use. Caution is, however, required, since a fixed term is only permitted under special statutory conditions. If these reasons are not available and nevertheless a – impermissible – time limit is agreed, then the employment agreement with the limited term shall be deemed to have been concluded for an indefinite period …

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ECJ: Death of the employee does not cancel holiday compensation – this also applies to private employers

What happens to open holiday entitlements when the employee dies? It is clear that nobody else – not even the heirs – gets the holiday granted (as free time) . Nevertheless, European and German holiday law provide for compensation for untaken leave in special cases. However, this only occurs if it was not possible to claim the leave. It was questionable whether the death of the employee is such a case. This was already clearly …

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Commission adopts proposals for a European Labour Authority

The European Commission is taking more concrete new initiatives to further deliver on the European Pillar of Social Rights. More specifically, the Commission has presented its proposal for a European Labour Authority, as announced by President Juncker in 2017, as well as an initiative to ensure access to social protection for all workers and self-employed. Over the last decade, the number of mobile citizens, people living and/or working in another Member State, has almost doubled …

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Requirements of offering of job performance, relationship to reintegration relationship

On 6 December 2017 the Federal Labor Court (docket number 5 AZR 815/16) decided an employee has to offer his job performance in accordance with the contract of employment, in order to claim remuneration for default of acceptance. It is not sufficient to offer an activity within a reintegration relationship according to sec. 74 Social Security Statute Book V (Sozialgesetzbuch V, SGB V), since the reintegration relationship is a contractual relationship sui generis, which is …

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The General Data Protection Regulation (GDPR) entered into force

On 25 May 2018, the General Data Protection Regulation (GDPR) entered into force harmonizing the regulations for the processing of personal data by companies and public authorities within the EU. Under the GDPR, employees’ data protection rights are significantly reinforced. Infringement of the GDPR regulations may now result in high administrative fines of up to 20 million euros or up to 4% of the total worldwide annual turnover of the preceding financial year. Therefore employers …

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Termination with Change of Terms of Employment on Grounds of Conduct

On 14 November 2017 the State Labour Court of Mecklenburg-Vorpommern (docket number 5 Sa 87/17) decided that a termination with change of terms of employment on grounds of conduct is socialyl justified if an employee has breached contractual obligations again in spite of a warning. In principle, this also applies in cases in which the change of terms of employment entails a transfer to a lower paid activity. The plaintiff is employed as a bus …

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Dismissal on suspicion (“Verdachtskündigung”) – reasonable time period to give a statement regarding the accusations

On 21 March 2018, the state labor court of Schleswig-Holstein ruled that a valid “dismissal on suspicion” (“Verdachtskündigung”) requires that the affected employee had been granted a reasonable time period to give a statement regarding the accusations (docket number 3 Sa 398/17). A “dismissal on suspicion” is void if the employer issues the notice of termination after having granted a time period of only two working days to the employee to issue his statement regarding …

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