Employment Law Overview Germany 2019-2020 - L&E Global Knowledge Centre

iII. EMPLOYMENTCONTRACTS1. MinimumRequirementsThe employer has a statutory obligation toprovide the main contractual terms in writing tothe employee no later than one month after thecommencement of employment. The terms andconditions of employment are regulated mainlyby statutes, collective bargaining agreementsand works council agreements. As a rule, theemployment contract may not deviate from theseprovisions to the detriment of the employee.The written summary must contain at least thefollowing: 1) name and address of the employerand the employee; 2) information on the startingdate; 3) the anticipated duration (only in caseof fixed term contracts); 4) the place of work;5) the nature of the activity involved; 6) thecomposition and amount of the remuneration; 7)the working hours; 8) the duration of annual leave;9) the notice period and 10) a general referenceto the collective bargaining agreements, works orservice agreements applicable to the employmentrelationship, if any. To avoid future disputes, aversion of the employment contract should bedrafted in German. However, this is not required bylaw.2. Fixed-term/Openended ContractsAs a general rule, the employment contract isentered into for an unlimited period. A fixed-termcontract is possible, provided the term is agreedupon in writing before the employment commences.A fixed-term contract ends automatically withoutwritten notice at the end of its term. A fixedterm employment relationship must be justifiedby objective grounds, some of which are setforth in statutory law (e.g. temporary increase inwork volume, substitution of an employee duringparental leave). If no objective grounds exist,fixed-term employment is limited to a maximumduration of two years, provided that no previousemployment contract with the same employerexisted. If the parties continue the employmentafter the expiration of the fixed-term contract,the agreement is deemed to be concluded for anindefinite period.3. Trial PeriodThe employer and employee may agree upon atrial period, which is limited by law to a maximumduration of six months. The notice period within thetrial period is two weeks. The Dismissal ProtectionAct does not apply during the first six months ofemployment, regardless of whether the partiesagreed upon a trial period.4. Notice PeriodThe length of the notice period for the employerdepends on the employee’s length of service,ranging from 4 weeks for employees with less than2 years’ seniority, to 7 months for employees withmore than 20 years’ seniority. Unless otherwisestated in the employment contract, the extendedstatutory notice periods are only applicableto terminations by the employer, whereas theemployee may terminate the employment witha notice period of four weeks to the 15th or theend of a calendar month. Most employmentcontracts align the notice periods for employeeswith the extended periods applicable to employers.Collective agreements may specify longer or shorternotice periods, whereas individual contractsof employment may only specify longer noticeperiods.an alliance of employers’ counsel worldwideemployment law overview2019-2020 / germany 5

IV. WORKINGCONDITIONS1. Minimum WorkingConditionsThe terms and conditions of employment (suchas maximum working hours, minimum paidholiday and sick leave) are regulated by statutes,collective bargaining agreements and works councilagreements. The individual employment agreementcannot deviate from these provisions to thedetriment of the employee. The rights of employeeswho are only temporarily sent to work in Germanyare generally determined by foreign employmentlaw. However, to ensure fair competition and toprotect the interests of employees, the PostedWorkers Act (Arbeitnehmerentsendegesetz –AEntG) stipulates that in certain business sectors– including, but not limited to the construction,commercial cleaning and mail service sectors– certain minimum working conditions mustbe observed. They include: 1) maximum workperiods and minimum rest periods; 2) minimumpaid vacation entitlements; 3) minimum wage,including overtime (pursuant to the relevantcollective bargaining agreement); 4) regulations onhealth, safety, and hygiene at work; 5) maternity/parental leave and youth protection; and 6) nondiscrimination provisions including prohibitions ongender discrimination.2. Salarya. Minimum WageA statutory minimum wage of 9.19 Euros perhour applies to all employees in all sectors ofbusiness. Employees under 18, trainees and internsare exempted from the regulation. Aside fromthe statutory minimum wage, there are specialregulations and collective bargaining agreementswithin certain sectors, e.g. the construction sector.Most of these regulations contain a minimum wageabove 9.19 Euros per hour.As a general rule, remuneration is determined bymutual agreement. The salary is set forth in theindividual employment contract, either concretelyor by reference to a collective bargaining agreement.Furthermore, the contractual freedom of theparties to determine the remuneration by mutualagreement, is limited by public policy. A salary ofless than two thirds of the relevant usual wage iscontrary to public policy and such an agreement isgenerally considered to be void.The minimum wage of currently 9.19 Euros perhour will be subject to further increase within thenext year. It will increase to 9.35 Euros per hourfrom 1 January 2020.b. Remuneration TransparencyActTo support gender equality regarding remuneration,the core of the Remuneration Transparency Act(Entgelttransparenzgesetz – EntgTranspG) is anindividual right to information on remuneration.This right is granted to all employees working inestablishments with more than 200 employees.There is, however, no right to be informedon a specific remuneration - only the averageremuneration of a comparison group must bedisclosed. This group comprises employees of theopposite sex who perform the same, or similartasks, as the employee requesting the information.However, as no specific remuneration shall bedisclosed, the claim can and must be denied ifproviding the information can lead to the salaryof specified employees becoming known. This isassumed if the relevant comparison group consistsof less than six persons.an alliance of employers’ counsel worldwideemployment law overview2019-2020 / germany 6

An employee has the right to information on: the criteria of how his/her remuneration isdetermined and/or the criteria of how the comparable remunerationis determined and/or the comparable average remuneration calculatedby the statistical median of the monthly averageremunerations, granted to employees in thesame or a comparable position.If the employer is bound by collective bargainingagreements, the reference to such agreements issufficient for fulfilling the information claim.The information can be provided by the workscouncil, the employer, or the parties of a collectivebargaining agreement. If the employer does notcomply with the employee’s claim, no directconsequences are provided in the law. If theemployee then, however, claims discrimination,the failure to inform will lead to a reversal of theburden of proof. The employer then has to provethat no discrimination took place.Employers remain free to pay employees differently,as long as this is based on objective reasons, suchas qualifications, market value, or responsibilities.3. Maximum WorkingWeekThe statutory maximum working time is 8 hours perday from Monday to Saturday. Working on Sundaysand public holidays is generally forbidden, unlessexplicitly permitted by statutory law. The statutorymaximum weekly working time is 48 hours. Theregular daily working time may be extended upto 10 hours, provided that on average 8 hours perworking day are not exceeded within a referenceperiod of 6 months or 24 weeks. An uninterruptedrest period of 11 hours after daily work must beguaranteed. There are no opting-out provisionsunder German law.4. OvertimeOvertime pay and overtime surcharges are notexpressively regulated by law but are subject tothe employment agreement, collective bargainingagreements or works council agreements. Forregular employees, it is not possible to deem anyovertime compensated by the regular remuneration.However, it is possible to contractually agree thatovertime of 10 – 20 % of the regular working timeshall be deemed as compensated by the regularremuneration.For board members and managing directors, anyovertime worked, is generally deemed to be alreadyremunerated by their normal salary.5. Health and Safety inthe Workplacea. Employer’s Obligation toProvide a Healthy and SafeWorkplaceAs the employer has the organisational controlof its premises and the employees are exposedto dangers of the workplace, the employer isobliged to provide a healthy and safe workplace.The employer therefore is obliged to set up andmaintain all rooms, devices and equipment andto organise the work in a way that the employeesare protected against any possible harm. However,the regulations on a healthy and safe workplacedepend on the type of industry sector and on thedegree of danger faced in the specific workplace.The fulfillment of the applicable health and safetyregulations are monitored by the administrativeauthorities.b. Complaint ProceduresEmployees are entitled to make suggestions to theemployer regarding all matters of safety and healthprotection. In the event that an employer doesnot meet its obligations, employees are entitled tolodge a complaint. If the employer does not respondto the complaint appropriately, the employees canlodge a complaint outside the establishment (e. g.to the authority for work safety). However, this issupposed to be the last resort.If the employer does not fulfill the rules ofoccupational safety, the employees are entitledto refuse to work at the workplace without losingtheir claim to remuneration. Furthermore, theemployee is also entitled to demand that healthan alliance of employers’ counsel worldwideemployment law overview2019-2020 / germany 7

and safety regulations are observed and may claimcompensation for any damages. Also, the workscouncil and the German administrative authoritiesmay insist on the fulfillment of applicable healthand safety regulations.c. Protection from RetaliationThe employee must not suffer any disadvantage as aresult of lodging a complaint. This applies as long asthere was reasonable indication that a breach of theemployer’s obligation to provide a health and safeworkplace has occurred. However, if the employeelodges a complaint to the authorities without givingthe employer a reasonable opportunity to correctthe lack of safety, a dismissal can be justified.an alliance of employers’ counsel worldwideemployment law overview2019-2020 / germany 8

V. ANTI-DISCRIMINATIONLAWS1. Brief Description ofAnti-DiscriminationLawsThe General Equal Treatment Act (AllgemeinesGleichbehandlungsgesetz - AGG) providescomprehensive protection against discrimination onthe basis of race and ethnic origin, gender, religionor belief, disability, age or sexual orientation. .orientation unless that provision, criterion orpractice is objectively justified by a legitimate aimand the means of achieving that aim are appropriateand necessary.3. Protections AgainstHarassment2. Extent of ProtectionFurthermore, the law especially protects theemployee against harassment and sexualharassment. Such categories are regarded asdiscriminatory categories in Germany.No discrimination may occur with respect to theconditions for access to employment, to selfemployment and to occupation, including selectioncriteria and recruitment conditions, whatever thebranch of activity is and at all hierarchical levels,including promotion. Furthermore all employmentand working conditions, including pay, must be freefrom discrimination.Harassment occurs, when an unwanted conducttakes place with the purpose or effect of violatingthe dignity of a person and of creating anintimidating, hostile, degrading, humiliating oroffensive environment, which is related to anygrounds protected under the law. An indication forharassment is the violation of dignity and creationof a hostile environment.The law provides protection against differentbehaviors. The general definition of discriminationtherefore includes:A specific form of harassment is sexual harassment,where the harassment takes place by unwantedconduct related to the sex of a person. This includesin particular unwanted sexual acts or requests tocarry out sexual acts, physical contact of a sexualnature, comments of a sexual nature, as well asthe unwanted showing or public exhibition ofpornographic images. direct discrimination indirect discrimination harassment sexual harassment and instructions to discriminateDirect discrimination occurs where one person istreated less favorably than another in a comparablesituation due to the criteria set forth in the AGG.Indirect discrimination occurs where an apparentlyneutral provision, criterion or practice puts anypersons in a disadvantageous situation comparedwith other persons, on grounds of racial or ethnicorigin, sex, religion or belief, disability, age, sexual4. Employer’sObligation toProvide ReasonableAccommodationsIn accordance with the law, the employer hasseveral organisational obligations to protect hisan alliance of employers’ counsel worldwideemployment law overview2019-2020 / germany 9

employees from discrimination at the workplace.The employer is obligated to take the necessarysafeguarding measures, point out inadmissiblediscrimination and protect employees againstdiscrimination from another employee or any thirdperson. Discriminatory behavior of an employee isconsidered a breach of the employment contract.In order to protect the victim from discrimination,the employer is obliged to take the appropriate andnecessary measures, such as a written warning ofthe offender, relocating them or terminating theircontract.Furthermore, the employer needs to establish acomplaints body for victims of discrimination forpursuing their complaints. The employer must alsotrain its employees in an appropriate manner inorder not to discriminate any other employees.5. RemediesThe employee, who was discriminated, hasthe possibility to complain with the company scomplaints body, if the discrimination relates tothe employment relationship. Furthermore, theemployee is also entitled to directly claim remedyor compensation, if they were discriminated.If the employer is responsible for thediscrimination, it is obliged to pay damages or areasonable compensation. Compensation amountsare, however, relatively low compared to othercountries. The employee needs to raise theirclaim in written form within a period of forfeitureof two months after they became aware of thediscrimination. In case of discrimination during thehiring process, only monetary damages are grantedby law, there is no right to be given the relevantjob, however. An applicant may be entitled to acompensation of three-monthly salaries even ifthey had not been hired in a discrimination-freeapplication process.6. Other RequirementsIn order to increase the number of women inmanagement positions, a gender quota of 30percent has been in force since 2016, for newsupervisory board positions in companies whichare listed or are subject to co-determination onboard level.an alliance of employers’ counsel worldwideemployment law overview2019-2020 / germany 10

VI. SOCIAL MEDIA ANDDATA PRIVACY1. Restrictions in theWorkplaceof an employee’s electronic communications canbe subject to monitoring activities by the employer,unless such communications are obviously private.The employer is entitled to decide whether or notand to which extent the employees may use thecompany Internet, telephone or e-mail system forprivate matters, within or outside of the workinghours. Without permission, the employee isgenerally not entitled to use the Internet for privatematters. The Federal Labour Court ruled that evenwithout an explicit prohibition, employees maynot assume that the employer will tolerate privateuse. If the employee violates the prohibition ofprivate use of work equipment, the employer isentitled to issue a warning and even to terminatethe employment contract, depending on thecircumstances.If the private use is allowed or tolerated, theemployer may be qualified as a provider oftelecommunication systems, such being subjectto stricter laws, including criminal prosecutionfor accessing or ordering third parties to accessemployees’ communications beyond what isnecessary for security reasons. As long as thisquestion has not been answered by a Germancourt, we recommend not to monitor the use ofemployee’s electronic communications.In practice many employers permit the private useof Internet to a reasonable extent. However, evenin case of permission, the use of the Internet forprivate matters should be restricted regarding thecontent and the time of use.In case the private use has been prohibited, theemployer may spot check whether this prohibitionis being observed. The employees will have tobe made aware of these controls, and certainprocedures and steps have to be complied with.We strongly recommend prohibiting the privateuse of the employee s company e-mail address, asotherwise monitoring or accessing the employee scompany e-mail account may be very difficult,or may be a criminal offence, even where theemployer has a legitimate interest in such access(e.g. when the employee is off sick, on holidays, hasleft the company etc.).b. Data Privacya. Can the employer monitor,access, review the employee’selectronic communications?The employer’s rights in this respect depend greatlyon whether private use is allowed or not. If theemployer has prohibited the private use, the contentTo be able to control the usage, the private use ofInternet and e-mail should be made subject to theconsent of the employee.The new Federal Data Protection Act(Bundesdatenschutzgesetz - BDSG) has come intoforce together with the General Data ProtectionRegulation (GDPR) on

and individual employment contracts. Many labour and employment law mattersare heavily influenced by case law so that judicial precedent is an important part of the legal framework. Numerous separate laws and case law generally make German employment law difficultto navigate. There have been discussions about introducing a uniform Labour Code.