A recent court case held that an employee may claim maternity pay from the employer, even though she has not yet started to work in her employment relationship, since the statute does not regulate the necessity of a specific length of service before claiming such rights. Please note however, that the amounts to be paid by the employer can be reimbursed by an apportionment procedure from the health insurance of the employee.
A recent court case held that even smaller businesses, with only a few employees, may delegate the signature of a job reference to an employee of the HR department. Please note however, that in such a case, it is necessary that the kind of representation and the function of the person
In Germany, the regulation regarding the request of written form for (unilateral) notifications or declarations of the employees will change with effect as of 1 October 2016. Pursuant to a reform of the regulations on terms and conditions, any provision, which requests a stricter form than text form (email and fax is sufficient) from an employee is then no longer valid.
Pursuant to a judgement of the German Federal Employment Law Court as of 24 August 2016, a clause of forfeiture, which does not exclude an applicable minimum wage pursuant to the German regulation on Employee Posting, is invalid. It is not possible to waive the minimum wage pursuant to Sec. 9 of the German regulation on Employee Posting. Therefore, a general clause of forfeiture without any respective limitation is invalid. It is also not possible to “reduce” such an invalid clause to its legally valid content due to reasons of transparency.
On 12 July 2016, the German Federal Employment Law Court ruled that there is no need for the employee to have a lawyer present while accessing his personnel file, when the employer allows him to make copies of his file.
The German Federal Employment Court recently ruled that while it is possible for the parties to an employment agreement to agree upon a bonus, which shall be determined at the employer´s equitable discretion, if the employer in such case does not decide about the bonus payment as such, the employment law court can determine the amount of the bonus payment unilaterally. Furthermore, the employment court must weigh the submitted facts of each party in order to decide about the bonus amount.
The employee has to bear the burden of proof regarding the beginning and the end of his sick leave. In a recent ruling by the German Federal Employment Court, this burden of proof also applies with respect to continued sick leave and in order for the employee to receive unemployment benefits for an additional six weeks after the initial six weeks has expired, he is obligated to prove that his previous sick leave ended before the further sickness began.
The German Federal Employment Court ruled on 29 June 2016, held that the minimum wage of EUR 8.50 gross must also be paid for standby times, if the employee is ordered by the employer to hold himself ready for work at a place directed by the employer. However, the German court also held that the situation must not be regarded per hour, but that the overall contractual remuneration has to be divided by the overall working time including standby times. Therefore, an agreement, which regulates higher payments for active work and payments below minimum wage for standby times, is valid, if the minimum wage is overall guaranteed.
An employee, who uses company property during his working time for an illegitimate purpose, such as creating pirate copies of audio and video files, might be terminated for cause by the employer. Such behavior is regarded as a gross violation of the contractual duties and destroys the employment trust relationship. Therefore, depending on the relevant circumstances of the situation, a termination for cause might be legitimate.
Since the first nationwide minimum wage of EUR 8.50 gross per hour was introduced in Germany in 2015, it is disputed whether special payments (e.g. Christmas bonuses) can be credited against the minimum wage due. On 25 May 2016, a German State Labour Court ruled that this depends on the purpose of the payment. Payments granted in return for the employee’s work performance count towards the minimum wage, while payments that the employer grants regardless of the employee’s performance cannot be credited against the minimum wage. For instance, if the employer pays a Christmas bonus to reward employee loyalty or a holiday bonus to cover special holiday expenses, such payments are not made in return for the employee’s work performance and have to be granted in addition to the minimum wage.