After several months of negotiations, the German Social Democrats and the Union parties agreed on a new coalition agreement for the German government’s new four year term of office. The coalition agreement provides for several changes in the employment law legislation over the next four years.
Under the German Works Constitution Act, it constitutes a criminal offence to obstruct or influence a works council election by inflicting or threatening any unfavorable treatment or by granting or promising any advantage. The Federal Labour Court recently ruled that this prohibition does not go so far that it triggers a strict neutrality obligation of the employer and his executive employees towards the works council and its individual members.
A voluntary and anonymous survey regarding the employees’ work environment and working conditions, carried out among all employees within a group by the group management and based on a standardized questionnaire, is neither subject to co-determination of the works council as a measure of health protection nor qualifies as a personnel questionnaire. Therefore, the local works council may not claim injunctive relief.
An employer generally satisfies the employee’s claim to a reference letter even if the paper is folded twice in order to put the reference letter in a common, standard-sized envelope. This shall apply as the original reference letter can be copied and the fold is not visible in the copy of the reference letter.
The German Federal Labor Court ruled that a post-contractual non-compete agreement is a mutual contract and that the payment of the compensation (at least 50 % of the last monthly gross salary) is the employer’s counter obligation for the employee’s restraint from competition.
The employer needs to pay the minimum wage for every hour in which the employee renders his/her service pursuant to the employment contract. This payment obligation does not only relate to actual working time, but also includes times of on-call duties.
When an employee secretly records a staff appraisal with his smartphone, this violates the general right of privacy of the other participants of the appraisal, which is guaranteed in the German constitution, and can justify an extraordinary termination of the employee’s employment with immediate effect.
The prerequisites of the new GDPR need to be incorporated into the existing German BDSG. A bill has already been drafted and will come into force on the same day as the GDPR (25 May 2018). In particular, infringements of data protection provisions will be punished more severely under the new regulations
As already announced in previous client updates this year, the new Maternity Protection Act (MuSchG) will come into force on 1 January 2018, extending the rights of pregnant employees, students and interns. Employers should, in particular, pay more attention to risk assessment in the future.
The Federal Labour Court deemed that a three-year notice period stipulated in general terms and conditions (AGB) pre-formulated by the employer is invalid, even if the terms also stipulate that the employer must observe the same notice period.