Littler Global Guide - Germany - Q3 2022

Browse through brief employment and labor law updates from around the globe. Contact a Littler attorney for more information or view our global locations.

View all Q3 2022 Global Guide Quarterly updates   Download full Q3 2022 Global Guide Quarterly

New Statutory Regulations on the Adjustment of Employment Contracts

New Legislation Enacted

Author: Jan-Ove Becker, Partner – vangard | Littler

The German legislator has passed the law implementing EU Directive 2019/1152 on transparent and predictable working conditions in the European Union, which came into force on August 1, 2022, and entailed numerous changes to labor law, in particular to the German Evidence Act. Evidence of the material terms of the contract must be in writing, as electronic form is expressly excluded. In addition, for the first time, violations of certain provisions of the German Evidence Act will be treated as administrative offenses, each punishable by a fine of up to 2,000 euros.

Under the law, employers must provide employees with the name and address of the contracting parties, the required information on remuneration and the agreed working hours in a written record no later than on the first day of work performance. Other evidence (e.g., the start and duration of the employment relationship, a description of the work to be performed by the employee) must be provided no later than on the seventh day after the agreed start of the employment relationship and only in a few cases the previous one-month deadline does apply.

Employer’s Obligation to Comprehensively Record Working Hours

New Order or Decree

Author: Dr. Sabine Vianden, Associate – vangard | Littler

According to the decision of the Federal Labor Court of September 13, 2022 (1 ABR 22/21), employers are obliged to record all working hours of employees in accordance with the interpretation of Section 3 (2) No. 1 of the German Occupational Health and Safety Act in conformity with Union law. In this respect, this obligation also applies beyond the recording of working hours exceeding eight hours per day, as well as work on Sundays and public holidays, which is expressly required by the Working Hours Act.

Following the opinion of the judges, the employer’s scope of action is already conclusively defined by the law, and a right of initiative of the works council to introduce a system for recording working hours resulting from co-determination is excluded. It will be necessary to examine what leeway the decision still allows, how closely the occupational health and safety authorities now check the existence of a working time recording system, and whether the federal government can still keep its promise in the coalition agreement to save trust-based working time. In particular, it is necessary to await the detailed reasons for the decision, which are yet to be published.

ECJ: Vacation Entitlement Can Override Statute of Limitations

Precedential Decision by Judiciary or Regulatory Agency

Author: Kim Kleinert, Associate – vangard | Littler

The European Court of Justice ruled that a vacation claim is subject to the statute of limitations only if the employee has been informed of such vacation entitlement. If an employer has not informed employees of the possible forfeiture of vacation, a vacation claim cannot become time barred. In this respect, the German regulations on the statute of limitations are contrary to Union law. The ECJ ruled that an employer who violates the duty to inform should not be rewarded with a statute of limitations.

Employee Leasing - Extension of the Statutory Maximum Duration by Collective Agreement

Precedential Decision by Judiciary or Regulatory Agency

Author: Luisa Rödemer, Senior Associate – vangard | Littler

In the case of temporary employee leasing, a collective bargaining agreement (CBA) between the parties to the CBA in the sector in which the employee is to be deployed may provide a different maximum leasing period in deviation from the legally permissible period of 18 months. This also applies with effect for the leased employee and the lender, regardless of whether they are bound by the CBA. Due to this effect, an employment contract between the temporary worker and the hirer is not concluded by operation of law on the basis of exceeding the statutory maximum temporary employment period.

The decision of the Federal Labor Court of September 14, 2022, thereby confirms that the parties to the CBA have considerable leeway with regard to a regulation that goes beyond the statutory maximum duration of the temporary employment relationship.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.