BAG: Crowdworkers may be regarded as Employees

Not only politics but also the judiciary are currently dealing with modern forms of employment and the ongoing digitalisation of the world of work. Last week the Federal Labour Court (Bundesarbeitsgericht – BAG) had to decide on the employee status of a crowdworker. Contrary to the previous instances, the BAG recognised in the case to be decided that the crowdworker’s work was dependent on instructions and determined by others. Thus, the contractual relationship between the crowdworker and the crowdsourcing company was to be regarded as an employment relationship, decision of 01 December 2020 – 9 AZR 102/20.

In its decision of 29 September 2020 (9 AZR 266/20), the Federal Labour Court (Bundesarbeitsgericht – BAG) referred the question to the European Court of Justice (ECJ) for a preliminary ruling on whether Article 7 of the Working Time Directive 2003/88/EC and Article 31(2) of the Charter of Fundamental Rights of the European Union preclude application of the national statute of limitations (§§ 194 et seq. BGB).

In the opinion of the Emden Labour Court (ArbG Emden, decision of 20 February 2020 – 2 Ca 94/19), employers are supposedly already obliged to set up an objective, reliable and accessible system for recording working time. However, this case law is neither consistent with the current national legal situation nor with the prevailing opinion, which rejects a direct horizontal third-party effect of the European Working Time Directive and the decisions of the European Court of Justice (ECJ).

BAG: Employer’s right to information after termination

Employees are obliged to inform the employer about the placement proposals submitted by the Federal Employment Agency and the Job Centre in the dispute about the default of acceptance remuneration, stating the activity, the working time, the place of work and the remuneration – Federal Labour Court (Bundesarbeitsgericht – BAG), decision of 27 May, 2020 – 5 AZR 387/19.

LAG Hamburg: Participation of the works council in determining the required personnel

The Regional Labor Court (Landesarbeitsgericht – LAG) of Hamburg granted the works council a right of participation in the determination of the (minimum) number of employees required for the completion of the operational tasks. The LAG held that the corresponding restriction of the entrepreneurial freedom of the employer is to be accepted (LAG Hamburg, decision of 16 July, 2020 – 8 TaBV 8/19).

Employees may refuse to use an electronic time recording system operated with a fingerprint scanner if its use is not necessary, e.g. to prevent misuse in time recording – according to the ruling of the Berlin-Brandenburg Regional Labour Court (LAG) of 4 June, 2020 – 10 Sa 2130/19.

The Regional Labor Court (Landesarbeitsgericht – LAG) Düsseldorf decided on 23 June, 2020 on the question whether the works council may refuse to cooperate with an employer representative, decision of 23 June, 2020, 14 TaBV 75/19. The LAG rejected this on the grounds that the works council was thus significantly in breach of its obligations under works constitution law and dissolved the works council at the request of the employer pursuant to sec. 23 para. 1 of the Works Constitution Act (Betriebsverfassungsgesetz – BetrVG).

With its decision of 19 June, 2020, the Federal Constitutional Court (Bundesverfassungsgericht – BVerfG) has now confirmed what had long been a source of dissent: the so-called strikebreaker ban according to sec. 11 para. 5 of the Temporary Employment Act (Arbeitnehmerüberlassungsgesetz – AÜG) is constitutional, decision of 19 June, 2020 – 1 BvR 842/17.

The works council is not entitled to demand that the employer’s representative speaks German if sufficient translation is guaranteed in the company, according to the Regional Labor Court (Landesarbeitsgericht – LAG Nuremberg, decision dated 18 June, 2020 – 1 TaBV 33/19.

On Tuesday last week, the German Federal Ministry of Labour and Social Affairs (Bundesministerium für Arbeit und Soziales – BMAS) released the new SARS-CoV-2 Occupational Health and Safety Rule (hereinafter referred to as the “Occupational Health and Safety Rule”) for publication in the Ministerial Gazette. The Occupational Health and Safety Rule will come into force in August 2020.