Employment and employee benefits in Germany: overview

A Q&A guide to employment and employee benefits law in Germany.

The Q&A gives a high level overview of the key practical issues including: employment status; background checks; permissions to work; contractual and implied terms of employment; minimum wages; restrictions on working time; illness and injury; rights of parents and carers; data protection; discrimination and harassment; dismissals; redundancies; taxation; employer and parent company liability; employee representation and consultation; consequence of business transfers; intellectual property; restraint of trade agreements and proposals for reform.

To compare answers across multiple jurisdictions, visit the Employment and Employee Benefits: Country Q&A tool.

The Q&A is part of the global guide to employment and employee benefits law. For a full list of jurisdictional Q&As visit www.practicallaw.com/employment-guide.

Pascal R. Kremp, DLA Piper UK LLP
Contents

Scope of employment regulation

1. Do the main laws that regulate the employment relationship apply to:
  • Foreign nationals working in your jurisdiction?

  • Nationals of your jurisdiction working abroad?

Laws applicable to foreign nationals

Subject to the provisions of an employment agreement, German employment law generally applies to foreign nationals working in Germany. However, if the foreign national works in Germany only on a temporary basis (for example, on a business trip or secondment), the laws of the jurisdiction that the employee usually works in can apply.

Under Regulation (EC) 593/2008 on the law applicable to contractual obligations, employers and employees can agree on the law that governs their employment relationship. However, the agreed choice of law must not exclude mandatory provisions under German law if they are more favourable to the employee in comparison to the agreed laws. The question of which regulations are more favourable to an employee will vary from case to case. For example, the following German employment laws are usually more favourable to an employee:

  • Termination protection.

  • Applicable collective bargaining agreements.

  • Holidays.

In addition, German statutory regulations cannot be ruled out if they are considered as public order law. These include provisions on:

  • Maternity pay.

  • Sick pay.

  • Notifications concerning mass redundancies.

  • Protection of disabled employees.

  • Working time.

Therefore there may be cases where the laws of a foreign jurisdiction will apply to the employment relationship, but German social security or tax laws can also apply.

Laws applicable to nationals working abroad

The rules above also apply, depending on the local laws, to German nationals working abroad.

 

Employment status

2. Does the law distinguish between different categories of worker? If so, what are the requirements to fall into each category, the material differences in entitlement to statutory employment rights and are there any maximum time periods for which each category of worker can be engaged?

Categories of worker

Generally, workers can be categorised as follows:

  • Dependent workers in an employer-employee relationship (employee).

  • Independent workers (self-employed contractors, such as freelancers and consultants).

An employee is someone who performs services under an employment agreement, under the direction and supervision of the employer.

An independent worker performs services on the basis of a service agreement and assumes the sole risk for his business. Even where a contract specifically describes a worker as an independent worker, that worker can still, in fact, be an employee given the circumstances of their employment relationship, and can still be entitled to the same rights as an employee.

Whether someone is considered as self-employed or an employee must be determined by an overall assessment, by taking into account various criteria, including but not limited to the following:

  • Is the contractor mainly free in deciding how, when and where to perform the services? Or is the contractor subject to specific working hours, start and end of working hours, and the location of the services?

  • Can the contractor use its own staff to perform the services or is the contractor obliged to perform the services in person?

  • Is the contractor allowed to work for other clients and does the contractor in fact work for other relevant clients? Does the contractor work full time or most of the time only for the contracting party?

  • What are the terms of engagement?

  • Is the contractor obliged to use the equipment of the client (such as a computer, email address and phone number) or can the contractor use its own equipment?

If someone is wrongly classified as self-employed, but is in fact an employee, this can trigger various consequences. For employment law purposes the person will enjoy all employee protection rights (such as termination protection, potentially resulting in an indefinite employment relationship or a request to pay severance pay, sick pay, holiday pay or minimum wage).

Under the social security laws, an independent contractor may have made all the necessary social security contributions that are required to be made by employees. In this instance, the employer may then be liable to pay the required social security contributions for both the employer and the employee for the last four years and, in case of intent, for the last 30 years of the duration of the employment contract. If an employer intentionally categorises an employee as an independent contractor, this can amount to a criminal offence.

Other categories of employees are as follows:

  • Tariff workers, who fall under the scope of a tariff agreement. They fall under the scope of a works council (if any exists) and usually enjoy all employee protection laws.

  • Non-tariff workers, employees who fall outside the scope of a tariff agreement (usually because they earn more than the highest paid tariff group). They fall under the scope of a works council (if any exists) and usually enjoy all employee protection laws.

  • Managing employees, who are not represented by the works council. They enjoy most of the employee protection laws, but with some restrictions (for example, the Working Time Act is not applicable, and a court can dissolve the employment relationship in consideration of a severance pay even if a termination is not supported by sufficient reasons).

Statutory representatives (for example, managing directors of a limited liability company) are not considered as employees for the purpose of the employment laws. However, they can also enjoy certain employment rights (for example, minimum notice period, minimum holidays).

Entitlement to statutory employment rights

Employees enjoy all the statutory protections afforded to them. Independent contractors are not subject to these protections.

Time periods

There is no maximum period of engagement for any category of worker.

 

Recruitment

3. Are any grants or incentives available for employing people? Does any information/paperwork need to be filed with the authorities or given to new employees when employing people?

Grants or incentives

Employers can apply for a grant (Eingliederungszuschuss) to employ people who are unable to find a job due to personal reasons (for example, because of disability or long-term unemployment). The duration and amount of the grant will vary depending on the individual circumstances. In general, an employer can claim up to 50% of the employee's salary for up to 12 months. However, in cases of severe disability, this can increase up to 70% for a maximum period of between 24 to 96 months.

Filings

The employer must ensure that social security contributions and income tax payments are duly made to the social security and tax authorities. The employer must therefore register the employees with the competent authorities. In addition, the employer must be registered for statutory employers' liability insurance (Berufsgenossenschaft). Additional filings may be required for specific groups of employees, such as severely disabled or pregnant employees.

 

Background checks

4. Are there any restrictions or prohibitions on carrying out background checks in relation to applicants?

Background checks

Background checks are permissible, only to the extent that the:

  • Employee's right to privacy is not affected in an unreasonable manner.

  • Employer has a reasonable and legitimate interest to obtain the information requested.

This will depend on the requirements of the specific role the candidate has applied for. For example, while asking for police records or even conducting a financial back ground check may be permissible for a cashier in a bank, it may not be permissible for blue collar workers working at an assembly line.

Interviews

The primary tool to obtain information about a candidate is to either ask questions in a job interview or to use an employee questionnaire. In both cases, questions can only be asked if they:

  • Are supported by a legitimate interest of the employer.

  • Do not amount to a disproportionate invasion of the candidate's right to privacy.

Questions relating to previous job positions are generally reasonable. However, questions about pregnancy, illness, religion and membership in a union are usually unreasonable and will therefore be unlawful. It is only permissible to ask about these matters in rare circumstances (for example, if a pregnant employee applies to work with highly toxic materials). If an unlawful question is asked or submitted, the candidate can lawfully lie (Recht zur Lüge) and the employer cannot raise any claim against the employee for lying.

 

Permission to work

5. What prior approvals do foreign nationals require to work in your country? What information/paperwork needs to be kept or filed with the authorities when they start work?

Nationals of European Union (EU) member states and nationals of the other countries of the European Economic Area (EAA) (Iceland, Liechtenstein, Norway and Swiss nationals) can usually take up employment in Germany without any residence and/or work permit.

All other nationals will usually require a residence and a work permit. Nationals of, among others, the US, Israel and Japan, and skilled workers enjoy favourable immigration treatment and have access to fast-track procedures (EU Blue Card).

Visa

In general, all foreign nationals who do not come from the EU or EAA need a visa to enter Germany. Bilateral agreements with certain states (such as the US, Israel and Japan) grant those nationals permission to enter Germany for no more than 90 days within a period of 180 days without a visa.

If nationals of these countries intend to take up employment in Germany or want to stay for a longer time period in Germany, they can apply for the required residence permit with the competent aliens office in Germany. However, they must not start to work until they have obtained the required residence permit. Certain activities such as consultations and negotiations during time-limited business travel or attending trade fairs are usually not regarded as taking up for work in Germany. If in doubt as to whether the intended activity requires a permit, it is advisable to consult the German authorities in advance. Required residence permits must be obtained prior entering Germany.

Procedure for obtaining approval. A visa (or a residence title, which includes a visa) must be obtained from the German embassy consulate at the current location of permanent residence before entering Germany.

Cost.The visa costs EUR60.

Time frame. The time frame for processing varies between two to ten days for a short-term visa and up to a couple of months for a long-term visa (or a visa including a work permit).

Sanctions. On expiry of the visa, the foreign national must leave Germany. A renewal is generally not possible (with certain exceptions in rare cases such as serious illness). The foreign national can apply for a new visa at the German embassy consulate at his permanent residence.

Permits

There are no separate authorisation procedures for residence and work permits so work permits can now be granted as part of the residence title. The residence permit is always temporary. After holding a residence permit for five years, an unlimited settlement permit can be applied for.

Procedure for obtaining approval. An application for a residence title can be filed at the German embassy consulate before entering Germany or at the local aliens departments after entering (if a visa is not required).

Cost. The residence title can cost up to EUR250.

Time frame. It can take up to four months to process a permit and up to six weeks for an EU Blue Card.

Sanctions. The individual is generally required to leave Germany on expiry of the permit.

 

Restrictions on managers and directors

6. Are there any restrictions on who can be a manager or company director?

Age restrictions

There are no statutory age restrictions except for the statutory capacity to contract (18 years of age).

Nationality restrictions

There are no statutory nationality restrictions.

Other restrictions

Under the Stock Co-operation Act (Aktiengesetz) and the Limited Liability Company Act (Gesetz betreffend die Gesellschaft mit beschränkter Haftung) there are certain exclusions for persons who have been convicted of certain criminal acts (for example, white collar crime).

 

Regulation of the employment relationship

7. How is the employment relationship governed and regulated?

The employment relationship is governed and regulated by:

  • Statutory laws.

  • The employment agreement.

  • Collective agreements (if any), such as works agreements with the works council or collective bargaining agreements with the union.

Written employment contract

The terms of the employment (for example, working hours, remuneration, holidays, and benefits) are usually agreed on in a written employment agreement. Except for fixed-term employment and non-compete obligations (which must be in writing), verbal agreements are also permissible, but are not recommended. In addition, the employer is obliged to provide a written statement of the employment terms to the employee within one month of the commencement of employment. The written statement must include, in particular:

  • Start date of the employment.

  • Usual work location.

  • Brief job description.

  • Salary and other elements of the remuneration.

  • Working hours.

  • Annual holidays.

  • Notice period.

  • Applicable collective agreements.

Employment agreements often include additional provisions, such as:

  • The flexibility to assign other comparable duties.

  • Confidentiality provisions.

  • Non-compete requirements for approval of other occupations.

  • Provisions regarding the return of company property.

  • Deadlines to claim rights based on the employment relationship.

Implied terms

A minimum standard of employment is provided by statutory law, including regulations on:

  • Health and safety.

  • Working hours.

  • Notice periods.

  • Holiday entitlements.

  • Minimum wage.

Collective agreements

Additional rights and duties, which overrule less favourable terms in the employment agreement, can be provided in:

  • Works agreements (agreements between the employer and the works council).

  • Collective bargaining agreements.

Works agreements are binding (within the scope of their application) on the employer, the works council and the employees (except for managing employees). Works agreements are not permissible to the extent that they cover the same topic as is already provided for in a collective bargaining agreement.

Collective bargaining agreements are usually only binding if both the:

  • Employer is a member an organisation that entered into the collective bargaining agreement with the union or the employer itself has entered into that agreement with the union.

  • Employee is also a member of the union.

In addition, collective bargaining agreements can be declared generally applicable by the government. A collective bargaining agreement can also apply if it is referred to in the employment agreement, or if it is usual best practice to apply the agreement.

 
8. What are the main points to consider if an employer wants to unilaterally change the terms and conditions of employment?

An employer's right to unilaterally change the terms of employment is very limited, and whether an employer can unilaterally change the terms and conditions of employment depends on the wording of the employment agreement.

For example, employers can unilaterally assign to the employee another job role if it is comparable to his existing role and does not result in a change of remuneration. In addition, it may be possible to withdraw certain benefits (such as a company car) or even bonus payments if both the:

  • Reasons for the withdrawal are explicitly provided for in the employment agreement.

  • Part to be withdrawn does not count for more than 25% of the overall remuneration.

If changes to the employment cannot be enforced unilaterally under the agreement and the employee is not willing to consent to the changes, the employer can terminate the employment with the applicable notice period and then offer to continue the employment after the expiration of the notice period with different terms of employment (Änderungskündigung). However, this is only justified if the termination is supported by sufficient reasons (for example, relocation for operational reasons) and the changes to the terms are reasonable. The threshold is high for determining whether or not such changes are reasonable.

 

Minimum wage

9. Is there a national (or regional) minimum wage?

Since 1 January 2015, the Minimum Wage Act (Mindestlohngesetz) applies to employees who are employed in Germany and provides for a minimum wage of EUR8.50 gross per hour (from 1 January 2017: EUR8.84 gross per hour). These rules, in principle, do not apply to minors, trainees, volunteers and former long-term unemployed workers. However, this is always subject to a case-by-case assessment.

It is the subject of some contention which part of the remuneration must be taken into account when calculating the minimum wage (for example, whether bonus payments should be taken into account). Recently, the Higher Labour Court of Berlin-Brandenburg (Landesarbeitsgericht Berlin-Brandenburg) decided that an employer must not credit the employee's entitlement to holiday and Christmas bonus against the obligation to meet the legal requirements of the Minimum Wage Act.

If the statutory minimum wage is not paid, employees can claim the difference between their actual remuneration and the minimum wage from their employer. In addition, subcontractors can not only claim payment of the minimum wage from their employer, but can also claim it from the main contracting company. Violations of the Minimum Wage Act can trigger fines of up to EUR500,000.

 

Restrictions on working time

10. Are there restrictions on working hours? Can an employee opt out on either an individual or collective basis?

Working hours

Under the Working Hours Act (Arbeitszeitgesetz), daily working hours must not exceed eight hours per working day, and based on six working days per week (Monday to Saturday), employees must not work more than 48 hours per week.

However, this can be extended to up to ten hours per working day, if within six months or 24 weeks, the average working time does not exceed eight hours per day. In principle, this also applies to night and shift workers. However, if the working time for night and shift workers is extended to up to ten hours per day, the average working time within one month or four weeks must not exceed eight hours.

It may be permissible to extend the working hours to more than ten hours per day under collective bargaining agreements (Tarifvertrag) or a works council agreement (Betriebsvereinbarung). However, it is not possible to extend the statutory limits under an employment agreement.

Work on Sundays and public holidays is generally prohibited. There are exceptions available for workers in the service industry. However, work on Sundays must be compensated by corresponding time off within the following two weeks (or eight weeks in the case of work on public holidays).

Rest breaks

A working day consisting of more than six but no more than nine hours requires a previously determined 30-minute rest break, which may be split into two breaks of 15 minutes. A 45-minute break must be granted after six hours of work in the case of a working day of more than nine hours.

At the end of the working day, an uninterrupted rest period of a minimum of 11 hours must be granted. During this rest period the employee must not be subject to any obligations towards his employer which prevent him from freely enjoying his time off.

Violations of the Working Time Act can trigger fines of up to EUR15,000. Very severe breaches may even constitute a criminal offence. It is not possible to opt out of the working time restrictions. However, the Working Time Act does not apply to managing employees (leitende ngestellte).

Shift workers

See above, Working hours.

 

Holiday entitlement

11. Is there a minimum paid holiday entitlement?

Minimum paid holiday entitlement

Under the Federal Holiday Act (Bundesurlaubsgesetz) the minimum statutory annual holiday entitlement is 20 days based on a five-day working week and 24 days based on a six-day working week. However, in practice, most employers grant more paid holiday; between 27 and 30 days' paid holiday are very common.

Employees are entitled to a holiday pay (some sort of continued payment of the salary) for the minimum statutory annual holiday entitlement, which is calculated on the basis of the employee's average salary (including variable remunerations) in the 13 weeks prior to the holiday.

In general, employees must take their annual holidays during the calendar year. Otherwise, it is forfeited. However, unused holiday can be carried forward until the 31 March of the next calendar year if the employee was unable to take the holiday due to operational or personal reasons. If any holiday entitlement still remains at the end of the employment, employees can claim financial compensation for the holidays not taken.

Public holidays

Public holidays in Germany (local and national) are as follows:

  • New Year's Day (1 January 2017).

  • Epiphany (some states) (6 January 2017).

  • Good Friday (14 April 2017).

  • Easter Monday (17 April 2017).

  • Labour Day (1 May 2017).

  • Ascension Day (25 May 2017).

  • Whit Monday (5 June 2017).

  • Corpus Christi (15 June 2017).

  • Day of German Unity (3 October 2017).

  • Day of Reformation (31 October 2017).

  • All Saints' Day (1 November 2017).

  • Christmas Day (25 December 2017).

  • St Stephen's Day (26 December 2017).

 

Illness and injury of employees

12. What rights do employees have to time off in the case of illness or injury? Are they entitled to sick pay during this time off? Who pays the sick pay and, if the employer, can it recover any of the cost from the government?

Entitlement to paid time off

The Continued Remuneration Act (Entgeltfortzahlungsgesetz) grants employees (once they have been employed for four weeks) six weeks' statutory sick pay, unless the employee has materially contributed to the sickness. If an employee subsequently falls ill due to the same underlying illness, the six-week period will recommence if six months have elapsed since the end of the last sick leave, or if one year has elapsed since the beginning of the first sick leave. If the underlying cause of illness is a new one, the six-week period automatically commences again. Following the six-week period, employees are entitled to statutory/private insurance sickness benefits.

Entitlement to unpaid time off

If employees are unable to perform their contractual duties because of a physical or mental incapacity then they will be relieved from work. The employer must be informed immediately and a medical certificate is required where there are three consecutive days of absence due to illness.

Recovery of sick pay from the state

Employers that employ no more than 30 employees are entitled to apply to the employers' cost sharing fund, from which they can recover sick pay. The fund is contributed to by employers (Aufwendungsausgleichsgesetz)

 

Statutory rights of parents and carers

13. What are the statutory rights of employees who are:
  • Parents (including maternity, paternity, surrogacy, adoption and parental rights, where applicable)?

  • Carers (including those of disabled children and adult dependants)?

Maternity rights

During pregnancy and until four months after the childbirth, it is illegal to terminate the employee's employment unless the competent public authorities have granted their prior consent. In practice, public authorities will only grant this consent under exceptional circumstances (for example, the shut-down of the entire business).

Expecting mothers are prohibited from working six weeks prior to and eight weeks after childbirth. The employee can expressly waive this protection in relation to the pre-birth period and continue to work. However, prohibition from work after childbirth is mandatory and cannot be waived.

Maternity leave starts automatically without any notice. However, if the employee has a medical certificate which states that the health of the mother or the unborn child will be endangered due to the employment, the employer may be prohibited from employing the employee before the start of the six-week period before childbirth (individual maternity protection period). In addition, in cases of premature birth or twin/multiple births, the eight-week period after the childbirth is extended to 12 weeks.

During the individual maternity protection period the employee is entitled to full pay. The remuneration is calculated on the average remuneration of the last 13 weeks or of the last three months prior to the beginning of the month of pregnancy.

During the statutory maternity protection period the employer is not obliged to pay the full remuneration, since the employee receives a maternity allowance (up to EUR13 per day) from the statutory health insurance or the Federal Insurance Office (depending on whether the employee is a member of the statutory health insurance or not). However, to the extent that the average net remuneration of the last three months exceeds the maternity allowance, the employer must pay the difference to the employee. The employer may be able to recover certain amounts from the authorities.

Paternity rights

See below, Parental rights.

Surrogacy rights

See above, Maternity rights.

Adoption rights

Parental rights and duties also apply to adoptive parents (see above, Paternity rights).

Parental rights

In addition to maternity leave, both female and male employees are entitled to take parental leave up to the third birthday of each child. The employee and employer can agree to transfer up to 24 months of parental leave to a point in time before the child's eighth birthday. A parental allowance is paid by the authorities for a maximum duration of 12 months of parental leave (14 months if the other parent decides to go on parental leave as well).

An additional option, ''Parental Allowance Plus'', is also available for parents of children born on or after 1 July 2015, which gives employees the right to receive the parental allowance from the government for a period of up to 24 months or, if both parents decide to take parental leave, parental allowance can be shared between the parents for a period of up to 28 months.

The employee must inform the employer about the date of commencement and duration of the leave at least seven weeks before they want to take the leave, and the employer cannot refuse this request.

During the parental leave, employers are not obliged to pay the employee's salary. However, employees may be entitled to a substantial parental allowance of 67% of the last net income (but not more than EUR1,800 per month) for a term of 14 months. Under the Parental Allowance Plus system, employees will receive the same amount of remuneration but stretched over the 24-month period. The state pays the parental allowance.

Termination of employment is invalid during times of parental leave, unless the competent public authorities have granted their prior consent.

Carers' rights

Employees can take up to ten days off work to take care of close relatives who are in urgent need of care. The employer must be informed about this without undue delay. The leave of absence is unpaid, unless stated otherwise in a collective bargaining agreement.

Employees can also take nursing care leave of up to six months for a close relative. The employee must give the employer at least ten working days' written notice prior to the commencement of the leave. The term ''close relative'' is defined very broadly and governed by the statutory provisions of the public nursing insurance. Only employers who usually employ more than 15 employees are subject to nursing care leave obligations.

Employers are not obliged to continue to pay the remuneration during a period of nursing care leave. However, an obligation to continue to pay can arise from other provisions under specific conditions (for example, in the case of short periods of urgent leave).

Employees enjoy special protection against dismissals from the moment they claim short-term release or nursing care leave until the end of the leave period.

 

Continuous periods of employment

14. Does a period of continuous employment create any statutory rights for employees? If an employee is transferred to a new entity, does that employee retain their period of continuous employment? If so, on what type of transfer?

Statutory rights created

The following rights only apply after specific periods of continuous employment:

  • After four weeks of continuous employment the employee is entitled to sick pay.

  • After six months of continuous employment the employee is entitled to:

    • protection under the Dismissal Protection Act (Kündigungsschutzgesetz);

    • full holiday entitlement; and

    • entitlement to part-time work

In addition, the statutory notice periods increase according to the length of service, varying from two weeks' notice during the six-month probation period, four weeks' notice after probation has been passed and to up to seven months' notice after 20 years of service.

Consequences of a transfer of employee

In the case of a transfer of business, the year(s) of service with the previous employer must be recognised by the new employer by operation of law.

 

Fixed term, part-time and agency workers

15. To what extent are temporary and agency workers entitled to the same rights and benefits as permanent employees? To what extent are part-time workers entitled to the same rights and benefits as full-time workers?

Temporary workers

The majority of employments are indefinite. However, fixed-term contracts are possible and common in certain industries. A fixed-term employment is permitted without any justification for a period of up to 24 months. During that 24-month period, a maximum of three extensions are permitted. A prior employment with the same employer (even if in a different role or as an intern for a few weeks only) is not permissible in the last three years before the beginning of the fixed term of employment (otherwise, the employment becomes indefinite).

The fixed-term period can be extended to more than 24 months, with justification (for example, where the employee is a replacement during parental leave, or employed for a specific project).

Fixed-term employment agreements must be agreed on in writing (wet ink) and must be signed before the commencement of employment.

Fixed-term employees are generally entitled to the same rights as full-time employees.

Agency workers

Agency work is heavily regulated in Germany. The employer (agency) must obtain a licence from the unemployment agency to lease employees to other companies (customers). If the agency does not have the licence, the work the employee does through the agency for the customer automatically creates an employment relationship between the employee and the customer. In addition, non-compliance with the rules on agency work can result in administrative fines for both the agency and the customer.

Agency workers must be employed in the same customer operation but on a temporary basis. There are no rules regarding how long this temporary relationship should last.

The law on agency work is based on the principles of ''equal pay'' and ''equal treatment''. According to these principles, agency workers are entitled to the same remuneration and benefits as the customer's permanent employees. However, if the agency applies a specific collective bargaining agreement, a lower remuneration may be possible.

Part-time workers

Part-time workers cannot be discriminated against for working part-time. Therefore, in general, they must have the same rights as full-time employees.

After six months of full-time employment an employee can request to reduce their working hours. This request must be filed three months prior to the requested start of the reduced working hours. The employer and employee must negotiate and agree on the reduction of working hours. If no agreement can be achieved the employer can reject the request, but only for operational reasons. The rejection must be served at least four weeks before the start date of the reduced working hours, otherwise, the request will be considered approved. However, these rules do not apply to companies with up to 15 employees.

Employees can apply to work part-time (between 10 to 30 hours) during parental leave. The request must be submitted to the employer at the latest seven weeks before the anticipated commencement of the part-time work. The employer can reject this request but only for urgent operational reasons. The employer must make a decision in writing within four weeks of the start date of the reduced working hours, otherwise, the request will be considered approved. However, these rules do not apply to companies with up to 15 employees.

 

Data protection

16. Are there any requirements protecting employee privacy or personal data? If so, what are an employer's obligations?

Employees' data protection rights

Personal data (including the personal data of employees) is protected in Germany as follows:

  • The provisions of the Federal Data Protection Act (Bundesdatenschutzgesetz) apply to the collection, processing and use of personal data of employees.

  • Specific data protection obligations can be contained in works agreements.

The privacy of employees is further protected by their respective personal rights (allgemeines Persönlichkeitsrecht), which are enshrined as fundamental rights in the German Constitution. In particular, the fundamental right of informational self-determination (the capacity of the individual to determine in principle the disclosure and use of their personal data) is a significant constitutional guarantee which applies to employment relationships in Germany.

Employers' data protection obligations

The collection, processing and use of personal data are only lawful in any of the following circumstances:

  • Statutory provisions permit or prescribe it.

  • The data subject (employee) has consented.

The Federal Data Protection Act permits the employer to utilise personal data of employees if either:

  • The use of the respective data is necessary for the establishment of an employment relationship.

  • The use of the respective data is necessary for the performance or termination of the employment relationship (after the relationship has commenced).

  • The use is specified in the works agreements.

The appointment of a data protection officer is required if more than nine individuals deal with electronically saved personal data. In addition, the processing of personal data (in particular, the implementation of technical means to process such data) is often within the remit of the mandatory co-determination rights of the works council.

Special rules apply to data transfer outside the European Economic Area (EEA) if the country of destination does not offer the same level of data protection as the EEA. US businesses signed up the EU-US Safe Harbour system which, until recently, was considered to offer a sufficient level of data protection. However, in October 2015 the European Court of Justice ruled that the EU-US Safe Harbour system for data transfer is invalid. The Working Group of European data protection authorities considers that, on an interim basis, the EU Standard Contractual Clauses (or Model Clauses) and Binding Corporate Rules (BCRs) can still be relied upon to legitimise transfers of EU personal data to the US, pending negotiations over the future of the safe harbour arrangements. Businesses that transfer personal data to the US should review this very carefully.

 

Discrimination and harassment

17. What protection do employees have from discrimination or harassment, and on what grounds?

Protection from discrimination

Generally, discriminatory and harassing behaviour in the context of an employment relationship is prohibited under German law and can lead to the employee making a claim against the employer for:

  • Compensation or damages.

  • Injunctive relief.

  • The employer to cease its discriminatory behaviour.

The Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz) (AGG) contains special rules prohibiting discrimination in the employment relationship based on specific characteristics provided for in the Act. The following characteristics are protected from discrimination:

  • Age.

  • Disability.

  • Race.

  • Ethnic origin.

  • Religion or belief.

  • Gender.

  • Sexual orientation.

However, discrimination and harassment are still generally prohibited even where they do not concern any of the above characteristics. Discrimination is defined as unequal treatment based on one or more of the above characteristics, which is not justified (AGG).

The following types of discrimination are prohibited:

  • Direct discrimination. Treating an individual less favourably because of a characteristic protected by the AGG or any other unjustified reason. Direct discrimination can be lawful if the employer can objectively justify the treatment.

  • Indirect discrimination. Applying a policy, criterion or practice to all individuals in a group, which disproportionately disadvantages individuals with a characteristic protected by the AGG or for any other unjustified reason, unless the discrimination is objectively justified.

  • Victimisation. Subjecting an individual to a detriment or dismissal because they have taken action in relation to a protected characteristic (for example, submitted a discrimination grievance).

However, not every instance of unequal treatment constitutes discrimination. Discriminatory treatment can be justified if a substantial and vital work-related requirement can be demonstrated.

Under the AGG, the employer tends to have the burden of proof. The employee can make a claim against their employer for compensation for moral damages and material damages (for example, salary loss due to a failure to promote or hire). An employee can also file for an employer's failure to act in the case of continuous discrimination or harassment. Generally, compensation and damages claims are not capped. However, employees must prove their actual moral or material damages and compensation claims for rejected job applicants are capped in certain situations at the three months' salary that the rejected job applicant would have earned in the position they applied for.

Protection from harassment

Employers are responsible to some extent for the welfare of their employees at work, which includes ensuring that employees are not subject to harassment. Employers therefore must ensure that employees are not:

  • Subjected to any unwanted conduct which violates their dignity or is intended to have that effect.

  • Subjected to an environment that is intimidating, hostile, degrading, humiliating or offensive.

  • Subjected to any unwanted conduct that is of a sexual nature.

 

Whistleblowers

18. Do whistleblowers have any protection?

There is no special protection for whistleblowers other than the general rules on termination (see Question 20).

Depending on the circumstances, whistleblowing can be considered as a breach of the duty of loyalty and therefore can even justify a termination. This must be assessed on a case-by-case basis. The underlying principle is to determine whether or not the individual in question acted in good or bad faith.

 

Termination of employment

19. What rights do employees have when their employment contract is terminated?

Notice periods

The employer must observe the applicable notice period when terminating the employment relationship. The statutory notice period varies from two weeks during a six-month probation period, to four weeks for employees on passing their probation, and up to seven months after 20 years' service. The employment agreement can provide for longer notice periods. Collective bargaining agreements can provide for shorter notice periods.

The employer cannot unilaterally pay the employee in lieu of notice (that is, make a one-time payment instead of continuing to pay the remuneration throughout the notice period).

Severance payments

There is no statutory severance in Germany. Employees are only entitled to severance payments under a social plan with the works council (often agreed on in the case of mass layoffs) or under a collective bargaining agreement.

However, in practice, many employers and employees will agree on severance pay provisions to avoid lengthy court proceedings concerning the effectiveness of the termination. This severance will often amount to 50% of the monthly salary per year of service. However, this can vary significantly depending on the strength of the case for dismissal and the previous practice of the employer.

Procedural requirements for dismissal

In the case of a severe breach of the employment agreement the employer can give a summary dismissal and terminate the employment with immediate effect. This notice of termination must be served within two weeks of the employer gaining knowledge of the underlying facts causing the dismissal.

 
20. What protection do employees have against dismissal? Are there any specific categories of protected employees?

Protection against dismissal

In a business with up to ten employees there is no dismissal protection, so termination does not need to be justified. However, the termination must not be discriminatory or violate public policies.

In businesses with more than ten employees, the termination of employees that have been employed for more than six months must be "socially justified" (Dismissal Protection Act (Kündigungsschutzgesetz)). ''Socially justified'' termination will usually be based on person-related reasons (for example, long-term illness), conduct-related reasons (for example, repeated breaches of employment terms after prior warning) or business reasons (for example, the shutdown of a business).

A dismissal must always be the last resort. Therefore, it is necessary to assess if there are any other proportionate means, such as continuation of the employment in a different role [or] location or with different terms (including lower salary).

The threshold for the effectiveness of a termination is quite high. The burden of proof is on the employer and employees can challenge a termination before the court. To be effective, the complaint must be filed within three weeks of service of the termination notice. If the case cannot be settled, the court can only rule that the termination is either effective (supported by sufficient reasons), or not effective. If the termination is effective the employment ends at the end of the notice period and the employee is not entitled to any severance (unless there is a social plan or collective bargaining agreement in place providing for severance pay). If the termination is not effective the employee must be reinstated in the previous position and is entitled to back pay starting from the end of the notice period.

Protected employees

In addition to the general termination protection, there are also special protection provisions against termination for certain groups of employees, including but not limited to:

  • Pregnant employees and mothers after childbirth.

  • Employees on parental leave.

  • Severely disabled employees.

  • Candidates and members of the works council.

  • Data protection officer.

Collective bargaining agreements or works agreements can make provision for additional special protections (for example, special protections for certain years of service, or for employees of a particular age).

 

Redundancy/layoff

21. How are redundancies/layoffs defined, and what rules apply on redundancies/layoffs? Are there special rules relating to collective redundancies?

Definition of redundancy/layoff

Redundancy dismissals must be based on compelling operational reasons. The employer must prove that the job position permanently ceases to exist and that there are no vacant positions in the company.

Procedural requirements

The employer must conduct a social selection among comparable employees, which is based on age, years of service, marital status, number of dependent children, and severe disability.

In addition, in the case of significant operational changes, the employer may be required to consult with the works council on a change of the operation. The consultation must take place while the employer only has a plan and before a final decision has been made. The consultation can last several months and often results in two agreements:

  • The balance of interests describing the measures to be implemented (for example, shutting down of parts of the business by a specific date).

  • The social plan providing for compensation to the affected employees (for example, severance pay).

While the works council in the end cannot avoid the implementation of the measures, the works council can heavily delay the process. In some regions in Germany the works council may be able to stop an early implementation of the measures by preliminary injunction.

Redundancy/layoff pay

There is no agreed statutory level of redundancy pay, and the amount (if any) of any redundancy pay made to employees will be determined by the social plan agreed between the works council and the employer.

Collective redundancies

Dismissals are considered to be collective redundancies, requiring notification of mass redundancies to the unemployment agency (Agentur für Arbeit), if the following numbers of employees are to be dismissed within 30 days:

  • In business operations employing more than 20 and less than 60 employees, more than five employees.

  • In business operations employing at least 60 and less than 500 employees, 10% of the employees regularly employed in the business operation or more than 25 employees.

  • In business operations employing at least 500 employees, 30 or more employees.

 

Employee representation and consultation

22. Are employees entitled to management representation (such as on the board of directors) or to be consulted about issues that affect them? What does consultation require? Is employee consultation or consent required for major transactions (such as acquisitions, disposals or joint ventures)?

Management representation

Depending on the number of employees, employee co-determination laws at board level may be applicable.

In large scale corporations with more than 2,000 employees, there is parity co-determination (that is, where the supervisory board consists equally of employee representatives and shareholders). In corporations with more than 500 and up to 2,000 employees, the supervisory board consists of one-third of employee representatives. Stock corporations (AG) and limited liability companies (GmbH) in the coal mining and steel producing industry with more than 1,000 employees have almost parity co-determination.

The supervisory boards (and therefore the employees' representatives on the supervisory board) monitor the management and have the authority to appoint and withdraw the management board members, and to enter into and terminate their service contracts.

Consultation

The most important employee representative body is the works council (Betriebsrat). In operations with more than five regularly employed employees who are eligible to vote, a works council can be elected by the employees. The works council is elected for a term of four years. In general, elections take place throughout Germany in all business every four years from March to May. The next elections are due in 2018. The size of the works council depends on the number of employees regularly employed in the operation.

The works council has general information and consultation rights under the Works Constitution Act. The works council is obliged to ensure that all laws, rules and health provisions are applied correctly and to the benefit of the employees. To perform its duties, the works council must be informed by, and provided with information by, the employer. If the works council has information and consultation rights, the employer and the works council can agree on works agreements, which are binding on all employees.

The Works Constitution Act provides for co-determination rights, which concern personnel, social and economic matters. Co-determination rights regarding personnel matters are, for example:

  • Individual personnel matters (for example, hiring, transfers to other job positions, regrouping of employees and termination of employment).

  • General personnel matters (for example, information on staff planning, and consent to employees' questionnaires).

  • Continued professional education (for example, consultation on development measures for employees).

Regarding social matters, the works council has powerful co-determination rights, in particular in relation to:

  • Policies relating to the order and conduct of employees.

  • Regular start and end of the working day and the allocation of working hours on weekdays.

  • Temporary increase or decrease of working time.

  • Introduction and usage of technology that could be used to control the conduct or the performance of the employees.

  • Implementation or changes to an operational pay scheme.

The works council must consent to the implementation of these measures.

In respect of economic matters, in the case of significant restructuring measures the employer must inform and consult the works council prior to the implementation of the measure (see Question 21).

In companies with more than 100 employees an economic committee can be established. The economic committee must be informed mainly on financial matters of the company. A European Works Council can be established in companies with a significant number of employees in several countries of the European Union.

Major transactions

A share deal or asset deal is subject to collective consultation rights if it is part of an operational change of the operation (for example merger or split up). However, an existing works council and/or economic committee must generally be informed.

 
23. What remedies are available if an employer fails to comply with its consultation duties? Can employees take action to prevent any proposals going ahead?

Remedies

The most relevant employee representative body is the works council. If the employer is in breach of mandatory co-determination rights of the works council (see Question 22, Consultation), measures taken with regard to employees are null and void.

Employers who are repeatedly in breach of the co-determination rights of the works council can be subject to administrative fines of up to EUR10,000.

Employee action

Depending on the specific co-determination rights, a works council may be entitled to request a preliminary injunction to prevent the implementation of measures violating co-determination rights.

In addition, if the employer and the works council cannot come to an agreement, either party can call for conciliation committee proceedings to make a binding ruling. A conciliation committee is an inter-company arbitration body consisting of an equal number of representatives of the employer and the works council (usually between two and three from each side) and a chairman, who is often a judge. If the conciliation committee cannot come to a majority vote, the chairman will decide. If the employer and the works council cannot agree on the scope of the conciliation committee, the number of representatives from each side and the chairman, either party can file a motion with the labour court, which will make the decision.

 

Consequences of a business transfer

24. Is there any statutory protection of employees on a business transfer?

A business transfer is the transfer of an economic entity (business or part of a business) which will maintain its identity after the transfer. Outsourcing measures can also trigger a transfer of business depending on the circumstances.

Whether a transfer of a business takes place requires an overall assessment by taking into account, among other things the:

  • Type of business.

  • Transfer of tangible assets (for example, buildings, moveable property).

  • Value of intangible assets.

  • Transfer of a majority of employees/know-how carriers.

  • Transfer of customers.

  • Degree of similarity of activities before and after the transfer.

  • Period, if any, of suspension of activities.

Automatic transfer of employees

If a transfer of a business occurs, the employees dedicated to the business will automatically transfer to the transferee. The transferee assumes all rights and duties of the transferor arising from the employment relationship existing at the time of the business transfer (including past liabilities). The years of service are preserved.

Employees affected by the business transfer must be notified comprehensively about certain aspects of the transfer prior to the transfer. The employees have the right to object to the transfer within one month of receipt of this information. However, if the information is not sufficient, the one-month period will not be triggered. The employees can even object to the transfer after several months and sometimes even after a few years. If an employee objects to the transfer, the employment will continue with the transferor. The transferor's right to terminate the employment is subject to the general termination protection laws (see Question 20, Protection against dismissal).

Protection against dismissal

In the case of a business transfer, employees enjoy special protection. Therefore termination employment because of the transfer of business is not permitted.

However, it is possible to terminate the employment for other reasons.

Harmonisation of employment terms

It is possible to harmonise the new employees' terms of employment with other existing employees. However, this is subject to general employment law rules, and in particular whether or not the employee consents to this.

The impact of the transfer of business on collective agreements must be reviewed very carefully. At a high level the same collective bargaining agreements of the transferor will continue to apply if the new employer is a member of the same employers' organisation. If the new employer does not apply any collective bargaining agreement, the rights under the transferor's collective bargaining agreement will be "transformed" into individual rights of the employees. These transformed rights can only be changed by mutual agreement with the employee, one year after the transfer of the business.

Works agreements of the transferor can also transform into individual rights if no works agreements are applicable to the new employer. These can only be changed by mutual agreement with the employee one year after the transfer of the business. If the new employer has works agreements dealing with the same subjects as the works agreements of the transferor, the works agreements of the transferor will be replaced by the works agreements of the new employer.

If the business or part of business to be transferred will be continued by the new employer as a stand-alone business, the works agreements can continue to apply on a collective level (that is, they will also apply to new hires). It is not permissible to terminate an employment relationship purely on the basis that a transfer has occurred (although termination can be allowed for other reasons).

 

Employer and parent company liability

25. Are there any circumstances in which:
  • An employer can be liable for the acts of its employees?

  • A parent company can be liable for the acts of a subsidiary company's employees?

Employer liability

An employer is usually liable for the work performed by its employees, including work-related damages caused by the employees. The employer can recover the damage, or part of the damage, from the employee only under very limited circumstances.

Parent company liability

A parent company is generally not liable for the acts of a subsidiary company's employees.

 

Employer insolvency

26. What rights do employees have on the insolvency of their employer? Is there a state fund which guarantees repayment of certain employment debts?

Employee rights on insolvency

In cases of insolvency, the employment relationships will continue with the insolvency estate. The administrator can send employees on garden leave or terminate the employment relationship with a shortened notice period of three months. Claims for remuneration which were due before the opening of insolvency proceedings are qualified as subordinate liabilities. Claims for remuneration for services performed after insolvency proceedings have opened are qualified as debts to the insolvency assets and will be satisfied with priority.

State guarantee fund

Employees are entitled to statutory insolvency pay for three months preceding the opening of insolvency proceedings if remuneration has not been paid.

 

Health and safety obligations

27. What are an employer's obligations regarding the health and safety of its employees?

An employer must do whatever is necessary to ensure the health and safety of his employees. The obligations (contained in the Labour Safety Act (Arbeitsschutzgesetz) and other specific statutory rulings) include specific requirements concerning:

  • Working space.

  • Operational progress.

  • Monitoring duties.

  • Providing instructions.

  • Risk management.

In addition, the appointment of a safety officer is mandatory in organisations with more than 20 employees. A violation of these obligations can result in fines, claims for damages and criminal charges.

 

Taxation of employment income

28. What is the basis of taxation of employment income for:
  • Foreign nationals working in your jurisdiction?

  • Nationals of your jurisdiction working abroad?

Foreign nationals

Taxation of the employee's income depends on his domicile or usual residence, irrespective of his nationality and whether the income was earned inside or outside of Germany. In principle, if the employee is domiciled in, or has his usual residence in, Germany, the income is subject to taxation in Germany. A person is deemed resident in Germany when he has spent 183 days in Germany within a tax year.

Nationals working abroad

Germany has entered into double taxation treaties (DTT) with many countries, which must be observed. Since most DTT are based on a model DTT, often the same principles outlined above (see above, Foreign nationals) apply to nationals working abroad. However, this must be reviewed in detail depending on the countries involved.

 
29. What is the rate of taxation on employment income? Are any social security contributions or similar taxes levied on employers and/or employees?

Rate of taxation on employment income

Every employee must pay income tax on remuneration. The employer must withhold the tax from the gross salary and pay it to the fiscal authorities.

In 2016 a taxable income of less than EUR8,652 is tax-free for a single person (and EUR17,304 for a married couple. Income above these thresholds is taxed at the following rates:

  • Income of up to EUR53,665 in 2016 is taxed at a rate progressively increasing from 14% to 42%.

  • Income from EUR53,666 up to and including EUR254,446 is taxed at 42%.

  • Income of EUR254,447 or more is taxed at 45%.

Social security contributions

Germany has an extensive and mandatory social security system. The following social security systems (with their respective contributions) exist:

  • National pension scheme (18.7%).

  • National health insurance (14.6%).

  • National unemployment insurance (3%).

  • Old-age nursing care (2.35%, from 1 January 2017: 2.55%).

The contributions are shared equally between the employer and the employee. The employer withholds the employees' share from the gross salary and the employer's share comes on top of the gross salary. The contributions are subject to certain social security contribution ceilings (SSCC).

In addition, employees must contribute another 1.1% (on average) for national health insurance and childless employees another 0.25% for old-age nursing care. The employer must also make contributions to the employers' work accident insurance.

Employees with an income above the SSCC can opt out for private health insurance coverage.

 

Bonuses

30. Is it common to reward employees through contractual or discretionary bonuses? Are there restrictions or guidelines on what bonuses can be awarded, whether generally or in particular sectors?

It is common in Germany to reward employees through contractual or discretionary bonus payments.

Restrictions

Employers must carefully review when setting up a contractual bonus plan as changes to the plan during the year are very restricted. Targets set by the employer must be reasonable and achievable. If this is not the case, employees can claim damages, often resulting in the payment of the on-target bonus amount.

Payment of a discretionary bonus is also permitted. However, in order to ensure that it is a real discretionary bonus that cannot then be subject to a claim for damages, employers should not set up a bonus scheme or indicate any target amounts. They should instead only decide at the end of each fiscal year if a bonus will be paid at all, and the amount.

Bonus payments are generally subject to the rules on discrimination and the equal treatment principle.

 

Intellectual property (IP)

31. If employees create IP rights in the course of their employment, who owns the rights?

Under German law, inventions and technical improvement proposals belong to the employee and not the employer. However, the employer can apply to claim these rights and if successful, the rights belong to the employer and the employee will be entitled to financial compensation. The rules governing inventions and technical improvement proposals are provided for under the German Act on Employee Inventions (Arbeitnehmererfindungsgesetz).

Employee's products of work that enjoy copyright protection are governed by the German Copyright Act (Urheberrechtsgesetz). Under German law, the copyright always belongs to the author. However, it is possible to grant the right to exploit and use a copyright-protected work. At the end of an employment relationship, the employee must transfer the rights to use and exploit a copyrightable work to the employer, without being entitled to additional financial remuneration. However, if software is created during the employment, the rights to use and exploit the software are automatically transferred to the employer.

 

Restraint of trade

32. Is it possible to restrict an employee's activities during employment and after termination? If so, in what circumstances can this be done? Must an employer continue to pay the former employee while they are subject to post-employment restrictive covenants?

Restriction of activities

During an employment relationship, the employee must protect the employer's business interests and refrain from competing activities. At the end of the employment relationship, the employee must not disclose business secrets if agreed in the employment agreement. However, the employee can work for a competitor. Post-contractual non-competition clauses are sometimes used for key employees who have specific knowledge of the employer's market and strong trade connections. However, any restraint of trade clause must comply with the detailed requirements of the German Commercial Code.

Post-employment restrictive covenants

A post-contractual non-competition obligation can be imposed on an employee for a maximum period of two years. The employee must be paid compensation during the entire period covered by the restraint, amounting to at least 50% of the employee's total recent earnings (last monthly fixed payments (for example, a salary) for variable pay for an average of three years). The restraint:

  • Must be justified by the legitimate interests of the employer.

  • Must not extend beyond the employer's business sector.

  • Can rarely be extended worldwide.

Any restraint must be agreed in writing and signed by both parties (wet ink); otherwise it will be null and void. It can be concluded either in the employment agreement or in a separate agreement.

Non-competition restraints can become a substantial financial burden so an employer will often want to waive the benefit of the provision in circumstances where the potential competition may be less harmful to the company than paying the compensation payment. However, if a non-competition obligation is waived, the requirement on the employer to pay compensation must continue for a period of one year following the waiver.

 

Proposals for reform

33. Are there any proposals to reform employment law in your jurisdiction?

The laws of agency workers are currently under review. A change of laws is likely to occur in 2016. In addition, the Company Pension Act (BetrAVG) is likely to undergo a major change in the near future.

 

Online resources

Gesetze im Internet

W www.gesetze-im-internet.de/

Description. This website is maintained by the Federal Ministry of Justice and Consumer Protection in cooperation with the "juris GmbH" and contains a comprehensive collection of German Acts in German and English. In the case of doubt, the German-language version is always binding.



Contributor profiles

Pascal R. Kremp, Partner

DLA Piper UK LLP

T +49 89 23 23 72 210
F +49 89 23 23 72 100
E pascal.kremp@dlapiper.com
W www.dlapiper.com

Professional qualifications. Germany, Rechtsanwalt (lawyer), 2003; Wake Forest University School of Law, LL.M

Areas of practice. Labour and employment law (including reorganisations, consultations with works councils, outsourcing deals, transactions, compliance investigations, pensions, litigation).

Recent transactions

  • Advising a major telecommunication company on pension litigation up to the highest labour court in Germany.
  • Advising a global IT provider on outsourcing from large network company in 13 jurisdictions.
  • Advising an international manufacturing company on the closure of a plant.
  • Advising a global healthcare company on complex compliance investigation including employment litigation.
  • Advising a global fashion brand on all employment matters in Germany.
  • Advising an insurance company on entry into the German market/

Languages. German, English

Professional associations/memberships. German-American Lawyer's Organization (DAJV); German Bar Association (DAV); Committee for Employment law in the German Bar Association (Arbeitsgemeinschaft Arbeitsrecht).

Publications. Key Aspects of German Employment and Labour Law, Springer.


 
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