Employment (Germany)

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The release of AI programs, like ChatGPT or DALL E, has sparked intense public debate about the use and limitations of AI. Despite this rather recent public development, in many companies, the use of AI is already well established. In the context of HR, common areas of application are seen in the search for candidates…

At the end of 2022, the German Federal Labor Court (BAG) published a decision stating that employers are obliged to introduce a system for recording the total working hours of their employees (BAG, 1 ABR 22/21). Up to now, the Working Time Act (ArbZG) has not contained an explicit obligation to record the working hours of all employees, except for overtime. The BAG thus confirms the decision of the European Court of Justice (ECJ) from 2019, according to which all EU member states are obliged to require all employers to introduce an “objective, reliable and accessible system” documenting the work performance of their employees (ECJ, C-55/18). In its decision, the BAG bases the obligation to introduce a time recording system by the employer on the provision in Sec. 3 (2) No. 1 Occupational Health and Safety Act (ArbSchG), which states that the employer must enable “suitable organization” and provide the necessary resources for this.

Employers and the German legislator are expected to act in response to the BAG’s decision on the recording of working hours. The German Federal Ministry of Labor and Social Affairs (BMAS) has announced that it will present a proposal for including the obligation to record working hours in the Working Time Act in the first quarter of 2023. However, employers should start dealing with the new requirements now and not just wait for the legislator to pass a new law as the new case law on the obligation to record working hours is binding with immediate effect. Employers should therefore pay particular attention to the following:

  1. Employers should start to either work on implementing a working time recording system that records start, end, and total duration of daily working time as well as breaks or they should check their existing time recording system for compliance with the new requirements.
  2. Case law does not stipulate any requirements with regard to the type and form of recording of working hours. This means that employers are largely free to choose the type and form of the time recording system itself (e.g. whether electronic or not).
  3. Employers can delegate the recording of working hours as such to their employees. However, since the employer is responsible for setting up and operating a working time recording system, they must also encourage employees to use the system in practice. For this purpose, employers should sufficiently instruct their employees and inform them which times are to be recorded as working hours. The correct use of the time recording system should also be monitored regularly.
  4. Companies with a works council must involve them in the decisions around the arrangement (the “how”) of a working time recording system as the works council has participation rights in this respect.
  5. Employee data protection must also be taken into account when establishing a time recording system, as time records are considered personal data and must be treated in accordance with the essential data protection principles (e.g. data minimization, storage period, international data transfer).

With regard to flexible working models, such as trust-based working or working from home, no significant consequences are to be expected in the future: trust-based working time means that employees are responsible for planning their own working hours and must ensure that they comply with the amount of time agreed with the employer. Even before the new case law on time recording, the general conditions of the Working Time Act already applied here. The obligation to record working time means that in the future, the working time itself must be documented, but flexible working time arrangements remain generally feasible. This means that if employees have access to a working time recording system from home to record their working hours, the requirements of the new case law are still met.…

Continue Reading BAG decision on the obligation of German employers to record working hours

In advance of the holiday season, it is common practice in many companies for the employer to show gratitude and to reward employees for their performance over the year. Typically, this is done by granting a bonus or similar one-time payment. Even though the legal basis of such payments often is a contractual agreement, a collective bargaining agreement or a works agreement, in many instances payment is made on an informal, “voluntary” basis. In such cases, employers often assume that they can decide whether to grant a bonus on a year-to-year basis without creating an obligation towards employees.

While this assumption can be correct, often employers are surprised when confronted with the idea of having established a “company practice”. According to German law, such company practice creates a legal entitlement of employees towards their employer for the same bonus granted during the last years. A typical situation for a company practice to surface is an employer who paid a year-end bonus to all employees, for example, the amount of one monthly salary for the last several years. After a change of ownership, the new management decides not to pay the respective bonus, only to find that employees successfully claim the previously paid bonus in German labor courts.…

Continue Reading Year-end bonus and company practice in Germany

As of 1 August 2022, employers in Germany must provide employees with additional information on the terms and conditions of employment. In case of non-compliance, there is a risk of administrative fines of up to EUR 2,000 per violation.

In June 2022, the German government passed changes to the Notification Act that will enter into force on 1 August 2022 and will require action from employers in Germany. Background of the amendments to the already existing Notification Act is the implementation of the European Directive on Transparent and Predictable Working Conditions (EU 2019/1152) into national law.

Important Consequences for Employers

The changes mean that employees need to be provided with additional information on essential terms and conditions of employment. The German legislator decided to apply a written form requirement for this notification and thus decided against the possibility of digitalization. This means that the information on the essential conditions of employment must be wet signed by the employer.

Although the Notification Act is not new for employers, it has not been of great significance in practice to date, not only because of the lack of consequence so far, but also because of the comparatively low requirements that were typically met by standard employment contracts.…

Continue Reading Employers in Germany must take action following changes to the Notification Act

Under German law, the (mostly mandatory) provisions of the German Federal Vacation Act (Bundesurlaubsgesetz – BUrlG) constitute the basic legal framework for vacation entitlements. The Federal Vacation Act itself has not been changed for years. However, there are still a number of unanswered questions and controversial debates regarding vacation claims in Germany.

In 2019, the German Federal Labor Court (Bundesarbeitsgericht – BAG) had to deal on a regular basis with questions concerning vacation entitlements. Among others, several of the court’s decisions provided important clarifications about vacation entitlements during parental leave. At least in this respect, things are now somewhat clearer for employers.…

Continue Reading German federal labor court gives further clarifications on controversial aspects with regard to vacation entitlements

In general, the conclusion of a fixed-term employment contract is permissible if it is justified by a material reason (section 14(1) of the German Act on Part-time and Temporary Work (Teilzeit– und Befristungsgesetz – TzBfG)). Term limitations without a material reason are only permitted for a maximum period of two years (section 14(2)1 of the TzBfG). However, the conclusion of a fixed-term employment contract without material reason is prohibited if the individual concerned had previously been employed on a fixed-term or permanent basis by the same employer (section 14(2)2 of the TzBfG).

In its prior case law (from 2011 onwards) the German Federal Labour Court (Bundesarbeitsgericht) interpreted section 14(2)2 of the TzBfG to mean that a new fixed-term contract without material reason would only be prohibited under section 14(2)2 of the TzBfG if the employee had been employed within the last three years prior to the intended fixed term.…

Continue Reading 22 years is long enough – German Federal Labour Court rules that fixed-term employment contracts without material reason are permissible

The German Federal Leave Act (Bundesurlaubsgesetz) provides that employees forfeit the right to claim outstanding holiday entitlement at the end of the calendar year or at the end of a specific transfer period; in other words, all holiday must be granted and taken beforehand. Under previous case law, this did even apply in the event that the employer declined an employee’s holiday request even though the request was made in a timely manner.

The Court of Justice of the European Union, however, has taken a different approach. In its ruling of 6 November 2018, the court decided that the regulation according to which employees automatically lose annual leave if they have not submitted a holiday request is not in line with European law. Following this decision, the Federal Labour Court, the highest labour court in Germany, developed its current case law and stated in its ruling of 19 February 2019 that the employer is obliged “to ensure in a concrete and fully transparent manner that the employee is actually in a position to take their paid annual leave by formally requesting them – if necessary – to do so”.…

Continue Reading Loss of holiday entitlement – higher hurdles for employers if they want to ensure that employees lose the right to claim outstanding holiday entitlement at the end of the calendar year

The Labour Court Mainz is currently creating quite a stir in German professional sports. For decades, it was customary and recognized by the courts that contracts of professional athletes could be limited. The Labor Court in Mainz now sees this differently.

German goalkeeper Heinz Müller brought an action against his club Mainz 05. He had…

This post was also written by Claudia Röthlingshöfer.

Welcome to Reed Smith’s monthly global employment law blog post. This month’s post covers the protection afforded to whistleblowers around the world.

France

Under French law, employees cannot be sanctioned, dismissed or be subject to direct or indirect discriminatory measures (especially concerning salary, training, reclassification or appointment)…