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.Read more “Work prohibited! – The strikebreaker ban for temporary workers is constitutional”
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.Read more “Lost in Translation – Employer representative does not have to speak German with the works council”
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.Read more “New SARS-CoV-2 Occupational Safety Rule comes into force”
In its ruling of September 24, 2019, the Federal Labour Court (BAG) dealt with the requirements for the effectiveness of preclusion period regulations in socalled old contracts which were concluded before the Act to Modernize the Law of Obligations came into force on January 1, 2002.Read more “Federal Labour Court: Effectiveness of preclusion periods in old contracts”
The social and economic consequences of the corona pandemic for employers and employees are to be further mitigated in the coming months.Read more “Social protection package II – key measures”
In view of the widespread activity of home offices since the outbreak of the Corona pandemic and the associated problems and risks, we would like to take this opportunity to once again refer to the Federal Labour Court (BAG) ruling on access to the contents of a privately used device (BAG, dated January 31, 2019 – 2 AZR 426/18). According to this ruling, the employer is entitled to view files that are located on a business device and are not marked as “private” or are obviously private in nature – even if there is no justified suspicion of a criminal offence or serious breach of duty.Read more “BAG: Employer may access contents of privately used business device”
According to the recently adopted law to further mitigate the social and economic consequences of the corona pandemic (Social Protection Package II), the impact of the corona pandemic on employers and employees is to be further mitigated in the coming months. The Social Protection Package II mainly includes the following measures:Read more “Main reforms of the Social Protection Package II”
Anyone who completes a trial working day in a company and is injured during work on that day is legally insured against accidents as a “quasi-employee”.
In the case decided by the Federal Social Court (Bundessozialgericht – BSG) on August 20th, 2019, the prospective employee seeking work and a waste disposal company agreed on a single trial working day in order to get to know each other. The prospective employee rode along on the rear end of a waste truck and collected rubbish. During the trial working day he fell off the truck and injured himself severely. The defendant, the statutory accident insurance institution, refused to acknowledge an accident at work for lack of integration of the prospective employee in the organisation of the company and thus for the lack of an employment relationship. The BSG ruled in favour of the defendant insofar: a trial working day does not yet establish an employment relationship with statutory accident insurance coverage.
However, the BSG also clarified that even without an employment relationship trial working can be qualified as an insured occupation within the meaning of social security law. According to the BSG, the prospective employee was covered by statutory accident insurance as a “quasi-employee”, since he did not carry out his work solely in his own interest. The prospective employee acted in the interests of the waste disposal company by collecting waste. The waste disposal company thus had the opportunity to get to know the prospective employee. The trial working day therefore also had an objective economic value for the waste disposal company.
The decision of the BSG is particularly welcome, since the court acknowledges thereby the probationary employment relationship (in labour law rather known as trial work placement (Einfühlungsverhältnis)). In contrast to the employment relationship, the probationary employment relationship does not contain any obligations to perform services and grant remuneration. Accordingly, within the context of the probationary employment relationship the prospective employee is not bound by instructions and the company has no right of direction.
However, in case the prospective employee should receive work instructions regarding time, place and execution of the activity during the trial period and, even being integrated into the company’s operations for a short period of time, an employment relationship may exist despite deviating contractual regulations. In particular, there is a risk that some of the company’s instructions (including those that are necessary for the successful conduct of the trial working relationship) may be seen as the exercise of the right of direction that characterises an employment relationship.
If the contractual relationship is to be qualified as an employment relationship due to the contractual agreement and/or the actual execution, this usually results, among others, in the following consequences, which are far-reaching for the company:
- Obligation to pay the minimum wage
- Obligation to pay employer’s and employee’s contributions to the statutory social insurance (with limited recourse)
- Reduction of the probationary and waiting period according to the law on protection against dismissal (Kündigungsschutzgesetz – KSchG) in a subsequent employment relationship
- Restrictions on the agreement of an unfounded fixed term for a subsequent employment relationship
- Restrictions on the agreement of a temporary employment without cause in case of a subsequent employment
- Employee representatives’ participation rights in connection with the establishment of the contractual relationship and its termination
Considering the jurisdiction of the German Superior Courts trial work relationships should only be agreed in exceptional cases and only after prior careful examination. Longer-term trial working contracts should be avoided (rule of thumb: no more than one to three days, maximum one week).
The following explanations are of course neither to be understood as conclusive nor as generally valid. In particular, a different assessment may be required on the basis of the applicable employment contract, company and collective bargaining regulations as well as personal, company and other circumstances.Read more “FAQ on short-time working”