Damages for harassment at the workplace

Unfair treatment at the workplace only qualifies as harassment if it based on continuing hostile and discriminatory behavior that follows a purpose not protected by the legal system and infringes on an individual’s personality or similar rights (judgment by the Higher Labour Court (Landesarbeitsgericht, LAG) Rheinland-Pfalz, 30 November 2015, docket no. 3 Sa 371/15). In this case, the employee sued for damages on the grounds of harassment at the workplace. He claimed that he was …

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Circus artists: Employees or independent contractors?

The Federal Labour Court (Bundesarbeitsgericht, BAG) ruled on 11 August 2015 (docket number 9 AZR 98/14) that where an activity agreed by contract may typically be performed in an employment relationship as well as by an independent contractor, the decision of the parties regarding the type of contract has to be considered as part of the necessary overall balance when assessing the employment status. Individual aspects of the performance of the contract may only change its legal character contrary …

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Ordinary termination of employment due to sickness

A decision of the German Federal Labour Court (Bundesarbeitsgericht) on 13 May 2015 considered an employer’s termination of an employment contract based on personal reasons (the employee’s long term sickness absence) where there was no prior operational integration management (betriebliches Eingliederungsmanagement). The German Federal Labour Court indicated that the requirement on the employer to prove its case in judicial process increases  if an employer terminates an employment contract due to personal sickness and there has …

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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 …

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Employee data protection – an increasingly onerous task?

In Brussels, the EU Commission, the Council and the Parliament are currently negotiating the final version of the General Data Protection Regulation (GDPR) in what is known as the trilogue discussions. Whilst there are still considerable differences between the three drafts in play one thing is sure: together with the individual fines, reputational implications for violations of data protection law will increase substantially.   The GDPR will replace the rather outdated European Data Protection Directive …

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Second chance by termination

The Higher Labor Court Baden-Württemberg (Landesarbeitsgericht Baden-Württemberg) ruled on 6 May 2015 (ref. no. 4 Sa 94/14) that a termination in the probationary period according to the German Employment Dismissal Act, which extends the applicable notice period, cannot be considered an unlawful circumvention of dismissal protection, where the intention is to give the employee another chance to prove himself. According to sec. 1 para. 1 of the German dismissal protection law an employee is protected …

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Corporate Email Correspondence As Admissible Evidence?

The legal boundaries regarding the screening of an employee’s corporate email account and questions concerning the admissibility of those emails as evidence in court (eg in a wrongful dismissal lawsuit) have not been finally resolved. No express evidence exclusion rule is laid down by law, either in the Civil Code or in the Labour Court Act. Questions regarding the admissibility of corporate emails as evidence in general depend on whether the private use of corporate …

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Too short a notice period will not render a termination null and void

Even if an employment contract invalidly provides for a notice period of two days and the employer subsequently issues a termination with a two-day notice period, this will not render a termination null and void. The Hamm Higher Regional Labour Court (Landesarbeitsgericht, LAG) was called to rule on the validity of a termination in the context of an extraordinarily short notice period of two days during a probationary period (judgment dated January 30, 2015, docket …

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Ins and Outs of Bonus and Commission Payments – Part I

Employers may grant their employees bonuses in addition to fixed basic salary for a variety of reasons, for example, to reward performance, loyalty to the company or just as a Christmas gratuity. In this context different questions arise. This two-part post addresses the most common questions regarding bonus and commission payments.    What are the different types of bonuses payments? The term “bonus” is not limited to a special kind of a bonus payment. In …

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Independent contractor or employee – That is the question.

Time and again the question arises whether an individual is employed as an independent contractor or as an employee. Under German law there is a thin line between an employee, ie someone who performs services under an employment contract, and an independent contractor, ie someone who performs services on an independent basis. The distinction is even more difficult since is not made on the basis of the underlying contract alone, but on the way the …

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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 …

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Ins and Outs re Notice Periods and Fixed-Term Contracts

Fixed-Term Contracts under German Law In Thursday’s blog, we talked about notice periods under German law. Today’s contribution will focus on fixed-term employment contracts. Can a fixed-term contract be concluded orally? No, the specific duration of the employment contract needs to be put in writing, with employer and employee signing. Oral agreements will lead to a contract with indefinite duration. Is an objective ground always required for a fixed-term contract? No, a fixed-term contract can …

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Ins and Outs re. Notice Periods and Fixed-Term Employment

Employment relationships may end for various reasons. Two of the most common reasons are termination by either party or the end of a fixed-term contract. An employment contract may be terminated by either the employer or the employee by observing the applicable notice period. Employment contracts may also be concluded for a fixed-term. If the period of time agreed upon by the parties has been reached, or if the purpose for which the fixed-term contract …

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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 …

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What happens to accumulated vacation entitlements when switching from full to part-time work?

On June 11, 2014 the Higher Labour Court of Lower Saxony (Landesarbeitsgericht – LAG) dealt with the disadvantageous recalculation of unused accrued annual vacation when switching from full-time to part-time work. In accordance with a recent decision by the European Court of Justice (ECJ), the court held that when employees change their working hours from full-time to part-time, the amount of vacation not taken may not be adjusted in such a way that the accumulated …

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