International Employment Law Review: August 2013 - Issue 4: Recent Employment Law Developments in Germany

by Dechert LLP
Contact

Legislation

New Thresholds for Mini and Midi-Jobs are Established

Beginning January 1, 2013 the earning thresholds for mini-jobs and midi-jobs have been raised from € 400 to € 450 for mini-jobs and from € 800 to € 850 for midi-jobs. Mini-jobs and midi-jobs are a form of part-time employment which allows employees to have an average earning of up to € 450 (for mini-jobs) and € 850 (for midi-jobs) per month with only reduced social security payment obligations. Mini-jobs and midi-jobs are an important part of the German labor market. This form of part-time employment is extensively used in small businesses, the temporary work sector and in the service sector, particularly in wholesale and retail businesses, health and social services, restaurants and hotels.

Bankers' Bonuses are Capped

On March 20, 2013, the European Member States and the European Parliament agreed to cap bankers' bonuses at 100 percent of their annual pay, or 200 percent of their annual pay if approved by the qualified majority of the shareholders. The regulation will become effective on January 1, 2014 and will apply to all bankers working within the European Union, as well as employees of European bank subsidiaries abroad. Although the regulation may not have a huge impact on normal banking executives, it could have a radical effect on investment bankers, who work in a sector where it is not unusual for bonuses to reach as high as ten times their annual salary.

Case Law

Employees Can Waive Their Right to Receive Compensation for Their Statutory Minimum Vacation (German Federal Labor Court Decision Dated May 14, 2013 - 9AZR 844/11)

Employees in Germany are entitled by law to a minimum of 20 vacation days per calendar year. The statutory minimum vacation leave must be given to the employee during the employment, i.e. it cannot be waived or compensation paid as consideration for vacation not actually taken during the calendar year. However, if the minimum vacation leave cannot be taken by the employee before the end of his employment, the employee is entitled to a compensation payment. Due to the Federal Leave Act (Bundesurlaubsgesetz), it is not allowed to differ from the employee´s statutory entitlement to such compensation payment to the disadvantage of the employee. However, the Federal Labor Court has now ruled that the Federal Leave Act merely prevents employers and employees from negotiating on an individual basis upon an agreement that which excludes any such right to compensation. However, if the employee was able to make a claim for a compensation payment and waived such claim, the waiver shall be valid. In the case that the Federal Labor Court had to decide, the employee waived his compensation claim for untaken vacation leave in the course of a court proceeding for unfair dismissal as part of a settlement. The court pointed out that a waiver is possible if the employment is terminated and the compensation claim has already arisen and found that this waiver was valid.

Court Clarifies Exception to Notice Requirements (Decision Dated October 25, 2012 – 2 AZR 495/11)

The German Federal Labor Court decided a case where the employer had terminated the employment contract of an employee for good cause with immediate effect on grounds of misconduct (verhaltensbedingte Kündigung), and, by way of precaution, also by an ordinary dismissal based on misconduct by complying with the applicable notice periods. The employee, a chief physician, used his private mobile telephone during surgery even though that conduct was prohibited. However, the rules did not prohibit the use of the company phone for business calls even during surgery. The employee had received no prior warning about his conduct before he was terminated. The employee challenged his termination and the court found in his favor. The court reasoned that the requirement of a previous warning before a termination notice is issued had not been fulfilled in the case. Notwithstanding that the employee had violated his duties under the employment contract by making private phone calls during surgery; the misconduct did not justify an exemption from the general requirement of a previous warning before terminating an employee on grounds of misconduct. Such exemption from the warning requirement is possible only if it is either previously observable that the warning will not result in a change in attitude of the employee or if the misconduct constitutes such a serious matter that it would be reasonable to require an employer to tolerate it even once. The court found that neither exemption applied in this case.

Court Decides Case Involving Age Discrimination in Advertising Job Vacancy (German Federal Labor Court, Decision Dated January 24, 2013 – 8 AZR 429/11)

The German Federal Labor Court recently decided whether the advertisement of a vacancy for a “trainee-program” for university graduates/ young professionals and expressly addressed to entrants, constitutes age discrimination under the Federal General Equal Treatment Act (AGG). In this case, the claimant was a 36 year old lawyer with several years of experience. He applied for the vacancy, but was turned down. He argued that his application had only been denied because of his age in violation of the law. The company denied his allegations and argued that it had chosen the successful candidate by their final references. However, the Federal Labor Court ruled that the text of the advertisement for the vacancy was suggestive of age discrimination. As a result, the employer was obliged to put forth evidence that no such discrimination has actually occurred. If the company could prove that it had only included candidates with the best final references in its applicant selection without regard to age, it could prevail. As the claimant had denied such applicant selection of the company, the Federal Labor Court decided to remand the case to the Higher Labor Court Berlin-Brandenburg (Landesarbeitsgericht Berlin-Brandenburg).

Written by:

Dechert LLP
Contact
more
less

Dechert LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.