A chairperson is appointed by the social partners but needs approval by the federal labour minister. All individual members are appointed every five years. The decision is taken every two years. Under the Works Constitution Act Betriebsverfassungsgesetz , BetrVG , in establishments with five workers or more, all workers except for the executive staff are entitled to take part in elections for works councils or to become members of the works council.
They do not have to be a trade union member to do so. Whilst the works council has co-determination rights as well as consultation and information rights with regard to social and health and safety issues, these rights do not extend to issues which are part of collective agreements unless the agreement specifically allows the works council to deal with such topics. Works councils are the main form of employee representation at the establishment level.
Coverage varies strongly by establishment size. The situation has stayed stable at both ends of the scale, and the situation in small establishments has not improved, even though a reform of the Works Constitution Act in aimed at enabling worker representation to be put in place. Over the past decade, a decrease in works council coverage in medium-sized establishments is to be seen. Workers including workers on fixed-term and marginal contracts. Executive and managerial staff is excluded.
In the figure, we see a comparison between Germany and European Union for the people with 'Establishment size: All' when asked 'Official structure of employee representation present at establishment'. For the 'Yes' answer, Germany's score is lower than the European Union score. For the 'No' answer, Germany's score is higher than the European Union score. The National comparisons visualisation presents a comparative overview for the values of all answers between two selected countries. Private sector establishments with more than 10 employees.
Scope of employment regulation
Collective bargaining The central concern of employment relations is the collective governance of work and employment. This section looks into collective bargaining in Germany. The Collective Bargaining Act stipulates that trade unions, employer organisations and single employers can legally conclude collective agreements.
The concluded agreements are binding and are to be applied by all full members of the employer organisation unless the organisation offers membership without binding obligation to apply the agreement. The dominant feature of collective bargaining in Germany is sectoral collective bargaining, and agreements are typically concluded at regional level.
Single-employer agreements concluded by a company or firm and a trade union are of minor importance. Representative survey data from by the Institute for Employment Research IAB do not show an increase in company level agreements in recent years. Data by the European Company Survey and national sources are not easily comparable as the ECS provides data on the occupational level and the national cross-sectoral level which are unknown categories to German statistics. National data may be more reliable than the ECS as the IAB source is a representative panel surveying 16, establishments.
According to the national source, there has been an ongoing decline in both collective bargaining coverage and in works council coverage, although less pronounced in recent years. National collective agreements exist in the public sector. The dominant level is the sectoral level. National to a low extent and sectoral collective agreements to a growing extent contain opening clauses to settle works agreements concluded by works councils rather than by trade unions at company level.
The formal link between the sectoral and company level is the trade unions trying to reach the same or similar outcomes at company level as at sectoral level. Vertical coordination is rare and carried out by the German Services Union Deutscher Beamtenbund , dbb , which in some sectors bargains on behalf of small trade union affiliates. Pattern bargaining under the leadership of the strong export-oriented metal and machinery sector has been the dominant pattern of coordination. In the service sectors, public sector bargaining plays an important role, even with regard to wage setting under church law.
However, pattern bargaining is losing importance due to the growing divergence in the quality of industrial relations. Under the former, the federal as well as the regional labour ministers may extend an agreement if the extension is approved by a bipartite wage committee. Under the Posted Workers Act, the federal labour minister may react to a plea by the collective bargaining partners and extend a sectoral agreement to the national level.
From to , the number of extended agreements decreased from to To counteract the trend, the previous government amended both Acts to simplify the extension mechanism Act on the Promotion of Collective Bargaining Autonomy, see above. Despite this, the number of new extensions declined to in Many collective agreements contain so-called opening clauses that allow derogation from collective agreements under various circumstances.
The exact proportion of these clauses is unknown. There is no year in which no such clauses existed. Under Article 4 of the Collective Agreement Act, collective agreements stay valid until a new collective agreement is concluded Nachwirkungsfrist. Workers hired after the termination of the collective agreement and before the settling of a new agreement are not covered by the expired agreement. Collective agreements are by nature meant to ensure industrial peace and contain an obligation to hold the peace during the validity of the agreement. Collective agreement partners typically conclude a relative obligation, meaning that industrial action can be taken to reach a new agreement.
The Works Constitution Act contains an absolute peace obligation, meaning that works councils are not allowed to call a strike by themselves and outside of collective bargaining. In recent years, collective agreements have gained importance in settling new working time arrangements or in providing options to do so at establishment level. Under a collective agreement settled in , workers employed with the companies of Deutsche Bahn can choose between a wage increase, a reduction of weekly working hours or an additional six days off. In the chemical and mining sector, the collective agreement from offers an opening clause to deviate from sectoral weekly working hours at establishment level by providing a choice between 35 and 40 hours to particular units or groups of workers.
Very long working hours of up to 12 hours are also allowed. The collective agreement settled in the metal and machinery sector in contains an opening clause giving all workers the choice to reduce their working time to a minimum of 28 hours for a fixed time period and to return to full-time hours afterwards and to, on the other hand, raise the share of workers working overtime. Industrial action and disputes Legal aspects There are two main types of industrial action in Germany: There is no law governing the regulation of strikes or lockouts.
The Basic Law — apart from its general guarantee of the freedom of association — mentions neither. The regulation of industrial conflict has been left to separate legislation and since the legislator has remained inactive it has effectively been left to the courts. Case law has been developed by the Federal Labour Court in subsequent rulings.
A fundamental legal principle governing disputes is that industrial action must pursue an aim that can be regulated by collective agreement. Therefore, strikes and lockouts are only lawful in the context of collective bargaining and political or general strikes are considered to be unlawful. Only unions have the right to call a strike. Secondary action may be legal under certain circumstances.
There is no individual right of workers to go on strike. Strikes that are not officially recognised by a union are unlawful. A ballot is not required unless specific union rules require it. Career civil servants Beamte are banned from striking. An unlawful strike gives rise to entitlements to damages and in particular mutual entitlements to a restraining injunction between those involved. Whether or not a strike is unlawful is in each case to be decided by the labour courts concerned. Federal Employment Agency, annual data on industrial action Streikstatistik.
In the number of days lost was exceptionally high due to several long lasting strong industrial conflicts in the public sector Social and child care workers in municipalities and in privatised companies Deutsche Bahn, Lufthansa. In many sectors, trade unions and employer organisations have concluded a joint dispute resolution agreement Schlichtungsvereinbarung. Such resolution agreements usually define when the peace obligation expires and therefore when a trade union can call an official strike.
If negotiations for a new collective agreement fail to achieve any result, the bargaining parties can apply to the agreed joint dispute resolution procedure Schlichtung to prevent the outbreak of industrial action. The procedure does not have to lead to a compromise, but may merely intend mediation. There is no statutory mediation or arbitration procedure. In Germany, labour courts are the principal mechanism of conflict resolution, in individual as well as in collective labour disputes. Labour law is applicable only to relationships based on private contract.
Career public servants Beamte , in the strict sense of the term, are excluded from labour law. The relationship between career public servants and the state is not a private contractual relationship, but is defined by, and based on, public law. This is why the law on career public servants Beamtenrecht is considered to be a special section of public law.
Disputes concerning career public servants are not settled by labour courts, but by administrative courts.
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The German labour court system is three-tiered: These courts deal with private law disputes involving statutory rights - such as wrongful dismissal, infringement of works council procedures, disputes over wage payments and the interpretation of collective agreements. Labour courts have exclusive jurisdiction over all legal conflicts between employer and employee arising from the employment relationship.
In Germany, unlike in some other countries, not only trade unions, but also — and, indeed, first and foremost — individual employees can be parties on the labour side to cases heard in labour courts. In other words, trade unions have no means of preventing an employee from going to court.
Most lawsuits are initiated by individual employees, unions or works councils. In addition to the traditional way of individual dispute resolution via labour courts, the works councils where they exist play an important role in resolving disputes before they come to court. In this case, the judge and the conflicting parties agree an out-of-court settlement. If an agreement cannot be reached, the case goes back to court. The transposition of EU legislation has strengthened the role of out-of-court mediation.
In case agreement cannot be reached, the case is to be decided by the labour court. Individual employment relations Individual employment relations Individual employment relations are the relationship between the individual worker and their employer. This relationship is shaped by legal regulation and by the outcomes of social partner negotiations over the terms and conditions governing the employment relationship. This section looks into the start and termination of the employment relationship and entitlements and obligations in Germany.
The minimum age requirement for workers is The work contract can be concluded in writing or verbally but has to be laid down in written form within two weeks from the start of the work. The contract has to consider a given collective agreement or works agreement. Workers employed in establishments with up to 10 workers are not covered small enterprises have been excluded since Workers can be dismissed for personal reasons voluntarily , for reasons of conduct or for business reasons.
In case of the latter, the dismissal is subject to social selection if more than one worker is affected by the planned dismissal. This means that where several comparable jobs are at risk, older workers, workers with the longest tenure, those with family obligations or with a significant disability have the best chance not to be dismissed. The new MuSchG was extended to cover young women in vocational training, internships or training for a qualification; in addition, evening work In , an amendment of the given parental allowance scheme Elterngeld was enacted starting 1 January.
The new scheme, Elterngeld Plus , aims at reducing the share of mothers staying at home for up to three years and at promoting a double-earner model. It includes incentives to motivate mothers to take up part-time employment and for fathers to reduce working time and to engage in childcare. Eight weeks of pre-natal leave; 12 weeks of pre-natal leave in case the child is disabled. Post-natal maternity leave is considered to be part of parental leave see below. Parental leave is available for a maximum of three years. Since July , parental leave can be taken in three blocks without the employer's consent: The employer may refuse the claim of a third block of parental leave between the third and eighth year of life only for urgent operational reasons.
Parental leave allowance is paid for 14 months if fathers choose to take two months of parental leave. A paternity leave regulation is not in place. Fathers are covered by the parental leave regulation-. Under the Act on the continuing of remuneration Entgeltfortzahlungsgesetz, EntgFG from , in case of sickness leave the employer is obliged to pay the full wage for up to six weeks. The worker must have been employed for a minimum period of at least four weeks and on the third day of sickness leave has to provide proof of incapacity of work from a medical doctor. Termination of an employment relationship while a worker is on sick leave is prohibited unless unlawful conduct is detected.
In , the statutory retirement age was raised from 65 to 67 years. Gender differences do not apply. In retirement reforms were enacted. Under the new regulation workers with 45 years of contributions to the statutory retirement scheme may retire at the age of 63 if they were born in or earlier or up to 65 if born in In practice, the regulation covers predominantly male manual workers.
Women born before with extended phases of non-employment because of family obligations may retire at an age of 60 years if they provide proof of 15 years of social security coverage and 10 years of paid contributions to the retirement scheme after their 40th birthday. For workers, the reward for work and main source of income; for employers, a cost of production and focus of bargaining and legislation. This section looks into minimum wage setting in Germany and guides the reader to further material on collective wage bargaining. The MiLoG does not cover workers aged 18 years or younger who instead are covered by the Youth Protection Act , trainees in vocational training or interns defined as participating in qualification measures , and long-term unemployed in the first six months of employment.
Also during the transition period, collective agreements that settled a minimum wage lower than the national one were still in place. Since 1 January , these exceptions are prohibited. However, in case of seasonal workers, the employer may subtract costs for room and board from the minimum wage. The Minimum Wage Commission see below on bipartite bodies debates the rise of the minimum wage level every two years, based on the rise of the index of agreed collective agreements.
The next change will be debated in and take effect on 1 January In east Germany the pay rise was 2. But despite that, collectively agreed pay in east Germany still stayed below the west German average. For more detailed information on the most recent outcomes in terms of collectively agreed pay, please see:. Working time Working time: This section briefly summarises regulation and issues regarding working time, overtime, part-time work as well as working time flexibility in Germany.
The ArbZG does not cover civil servants covered by ordinances of the Bundeslaender , workers in the transport sectors covered by other national, European or international regulations , workers in liturgical services covered by church law and self-employed workers no regulation. The ArbZG can be opted out of via collective agreements and — under condition of an opening clause in the collective agreement — via works agreements. If neither a collective agreement nor a works council is in place, the employer may turn to the public authorities for authorisation to deviate from the ArbZG.
It can be granted in cases of urgency. The ArbZG stipulates an 8-hour working day and 11 hours of rest. Weekly working time can be extended to a maximum of 60 hours given that Saturday is a working day under the condition of an adjustment time of six months the EU Working Time Directive stipulates four months. The Act allows sectors with high shares of stand-by service workers to deviate from the regulations on resting periods for example, in hospitals, nursing care, and hotels and restaurants and to work more than 60 hours including stand-by work.
Agreed working time is strongly influenced by sectoral collective agreements, which define monthly or weekly working time, rest periods and breaks, number of holidays, and hours of shift work and night work. A trend is the concluding of working time accounts or leave regulations by sectoral collective agreements. At establishment level, codetermination rights by the works council and works agreements concluded by the worker representatives and management play the dominant role in settling working hours, overtime regulations, flexible working time arrangements and mobile working.
For more detailed information on working time including annual leave, statutory and collectively agreed working time , please consult:. Also works councils and management hold the right to conclude extensions beyond the agreed norm. The additional work begins beyond the threshold constituted by the negotiated norm. The agreements settle the form of compensation time off or remuneration.
Part-time work is a very widespread form of female employment in Germany. The total share of part-time workers in Germany in was The majority of part-time workers do not work in standard forms of employment but in atypical forms, the so-called mini-jobs. In establishments with at least 15 employees, workers have the right to transfer from a full-time to a part-time position. A reform enabling part-time workers to go back to full-time work is being debated.
These forms of employment are covered by the statutory retirement system, but workers may opt not to pay any contributions to the retirement, health or employment security schemes. Employers pay a lump sum to the social security scheme. Involuntary part-time workers are defined as people who work part time because they could not find a full-time job. The Working Time Act does not give a definition of shift work.
Work on Sunday is regulated under Art. In the case of ongoing shift work, the 24 hour rest period may start six hours before or after the normal time frame. According to the Working Time Act Art. The time of the breaks can be split in half. Workers may not work for more than six hours without a break. According to Article 5, workers shall have a rest period of at least eleven hours.
In hospitals, hotels and restaurants, care professions, media and agriculture the rest period can be cut by one hour under the condition of compensation within a four week period. Working time flexibility is a major issue in public debate. While employers call for more working time flexibility and a hour week, workers complain about overtime and call for more autonomy in setting their working time.
Collective agreements and works agreements provide for various forms of working time flexibility in terms of weekend work, overtime, shift work or working time accounts. Flexitime Gleitzeit is one of the most. In the figure, we see a comparison between Germany and European Union for the workers with 'Age: All' when asked 'Do you have fixed starting and finishing times in your work?
Data is based on question 39d from the sixth "European Working Conditions Survey The National comparisons visualisation presents a comparative overview for the values of all answers between two selected countries. Health and well-being Maintaining health and well-being should be a high priority for workers and employers alike.
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A healthy economy depends on a healthy workforce: This section looks into psychosocial risks and health and safety in Germany. But the trend also relates to a decline in manual manufacturing work BAUA Incidence rates are measured based on the number of accidents suffered by full-time workers rather than the number of employees. In , the number of accidents at work per 1, workers full-time equivalents stood at the all-time low of Monitoring psychosocial risks at work is a major issue in Germany as mental disorders account for a growing number of days of absence from work and for long sickness leaves.
The regulation in place is the Occupational Safety and Health Act Arbeitsschutzgesetz , ArbschG which since December stipulates that work may have detrimental effects on mental health and that work ought to be designed not to pose such risks. The Act sets out how psychosocial risks should be assessed and gives control of compliance to the labour inspectorate. In case of ongoing non-compliance, the employer has to pay an administrative fine.
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The implementation of the Act is supported by a new work programme on psychic health — launched by the Joint German Occupational Safety and Health Strategy Gemeinsame Deutsche Arbeitsschutzstrategie, GDA , a joint initiative by the national and the regional states and insurers. An initiative by the Federal Council council of the 16 regional states to enact a legislative order on psychosocial risk prevention was rejected by Parliament.
All' when asked 'Do you have enough time to get the job done? For the 'Always or most of the time' answer, Germany's score is lower than the European Union score. For the 'Rarely or never' answer, Germany's score is higher than the European Union score. For the 'Sometimes' answer, Germany's score is higher than the European Union score.
Data is based on question 61g from the sixth European Working Conditions Survey Skills, learning and employability Skills are the passport to employment; the better skilled an individual, the more employable they are. Good skills also tend to secure better-quality jobs and better earnings. This section briefly summarises the German system for ensuring skills and employability and looks into the extent of training. A pillar of the German system is the dual vocational training scheme; it combines training in vocational schools and workplace-based training in establishments.
Moreover, the dual training may be complemented by workshops run by the guilds and chambers of commerce, in order to compensate for the bias caused by training at only one company. These extra courses usually take three or four weeks a year. The time spent at vocational school is approximately 60 days a year, in blocks of one or two weeks at a time spread out over the year. The social partners are represented on the board of BIBB as well as on the boards of the Chambers of Industry and Chambers of Crafts which set the examinations and are involved in the design of training programmes.
Collective bargaining covers the wages and working hours of trainees and their options to be hired after termination of training. At establishment level, works councils have codetermination rights with regard to the implementation of the in-company vocational training. The alliance has sought to substantially raise the number of apprenticeship posts and internships, to cooperate with the Federal Employment Agency with regard to support measures for school leavers and unskilled, unemployed and foreign workers from European Member States and refugees.
In September , the partners launched a joint statement saying that they will cooperate in the labour market integration of refugees. With regard to refugees, social partners in the metal, chemical and in printing sectors have extended their collective agreements on the integration and training of low-achieving school levers to refugees. Legally employers are not obliged to provide vocational training or further training. If they do so, the Works Constitution Act stipulates that they should cooperate with the works council in these regards.
Under the laws of the regional states Bundeslaender , workers have the right to take five days of education leave per year Bildungsurlaub. This form of paid leave can be taken for adult education languages, health, political, societal topics or for occupation-related training.
The training has to follow set standards and the providers have to be certified to provide paid training leave. In practice, training vacations are most often taken by public sector workers and workers in large companies. Additionally, paid time off for training is also provided by works agreements concluded by employers and works councils. This form is most often realised in the public sector and in large companies.
In the collective bargaining round, the social partners in the metal and machinery sector union agreed on the inclusion of paid training leave in the sectoral agreement. All' when asked 'Have you had on-the-job training in the last 12 months? For employment law purposes the person will enjoy all employee protection rights such as termination protection, potentially resulting in an indefinite employment relationship or a request to pay severance pay, sick pay, holiday pay or minimum wage.
Under the social security laws, an independent contractor may have made all the necessary social security contributions that are required to be made by employees. In this instance, the employer may then be liable to pay the required social security contributions for both the employer and the employee for the last four years and, in case of intent, for the last 30 years of the duration of the employment contract. If an employer intentionally categorises an employee as an independent contractor, this can amount to a criminal offence. Other categories of employees are as follows:.
Tariff workers, who fall under the scope of a tariff agreement. They fall under the scope of a works council if any exists and usually enjoy all employee protection laws. Non-tariff workers, employees who fall outside the scope of a tariff agreement usually because they earn more than the highest paid tariff group. Managing employees, who are not represented by the works council.
They enjoy most of the employee protection laws, but with some restrictions for example, the Working Time Act is not applicable, and a court can dissolve the employment relationship in consideration of a severance pay even if a termination is not supported by sufficient reasons. Statutory representatives for example, managing directors of a limited liability company are not considered as employees for the purpose of the employment laws. However, they can also enjoy certain employment rights for example, minimum notice period, minimum holidays.
Entitlement to statutory employment rights Employees enjoy all the statutory protections afforded to them.
Employment and employee benefits in Germany: overview | Practical Law
Independent contractors are not subject to these protections. Time periods There is no maximum period of engagement for any category of worker. Are any grants or incentives available for employing people? Grants or incentives Employers can apply for a grant Eingliederungszuschuss to employ people who are unable to find a job due to personal reasons for example, because of disability or long-term unemployment.
The duration and amount of the grant will vary depending on the individual circumstances. Filings The employer must ensure that social security contributions and income tax payments are duly made to the social security and tax authorities. The employer must therefore register the employees with the competent authorities. In addition, the employer must be registered for statutory employers' liability insurance Berufsgenossenschaft.
Additional filings may be required for specific groups of employees, such as severely disabled or pregnant employees. Are there any restrictions or prohibitions on carrying out background checks in relation to applicants? Background checks Background checks are subject to strict data protection requirements and are only permissible to the extent that the:. Employee's right to privacy is not affected in an unreasonable manner.
Employer has a reasonable and legitimate interest to obtain the information requested. This will depend on the requirements of the specific role the candidate has applied for. For example, while asking for police records or even conducting a financial back ground check may be permissible for a cashier in a bank, it may not be permissible for blue collar workers working at an assembly line. Interviews The primary tool to obtain information about a candidate is to either ask questions in a job interview or to use an employee questionnaire.
In both cases, questions can only be asked if they:. Are supported by a legitimate interest of the employer. Do not amount to a disproportionate invasion of the candidate's right to privacy. Questions relating to previous job positions are generally reasonable. However, questions about pregnancy, illness, religion and membership in a union are usually unreasonable and will therefore be unlawful. It is only permissible to ask about these matters in rare circumstances for example, if a pregnant employee applies to work with highly toxic materials.
Permission to work 5. What prior approvals do foreign nationals require to work in your country? All other nationals will usually require a residence and a work permit. Nationals of, among others, the US, Israel and Japan, and skilled workers enjoy favourable immigration treatment and have access to fast-track procedures EU Blue Card. Bilateral agreements with certain states such as the US, Israel and Japan grant those nationals permission to enter Germany for no more than 90 days within a period of days without a visa.
If nationals of these countries intend to take up employment in Germany or want to stay for a longer time period in Germany, they can apply for the required residence permit with the competent aliens office in Germany. However, they must not start to work until they have obtained the required residence permit. Certain activities such as consultations and negotiations during time-limited business travel or attending trade fairs are usually not regarded as taking up for work in Germany.
If in doubt as to whether the intended activity requires a permit, it is advisable to consult the German authorities in advance. Required residence permits must be obtained prior entering Germany. Procedure for obtaining approval. A visa or a residence title, which includes a visa must be obtained from the German embassy consulate at the current location of permanent residence before entering Germany. The time frame for processing varies between two to ten days for a short-term visa and up to a couple of months for a long-term visa or a visa including a work permit.
On expiry of the visa, the foreign national must leave Germany. A renewal is generally not possible with certain exceptions in rare cases such as serious illness. The foreign national can apply for a new visa at the German embassy consulate at his permanent residence. Permits There are no separate authorisation procedures for residence and work permits so work permits can now be granted as part of the residence title.
The residence permit is always temporary. After holding a residence permit for five years, an unlimited settlement permit can be applied for. An application for a residence title can be filed at the German embassy consulate before entering Germany or at the local aliens departments after entering if a visa is not required.
The residence title can cost up to EUR It can take up to four months to process a permit and up to six weeks for an EU Blue Card.
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The individual is generally required to leave Germany on expiry of the permit. Restrictions on managers and directors 6. Are there any restrictions on who can be a manager or company director? Age restrictions There are no statutory age restrictions except for the statutory capacity to contract 18 years of age. Nationality restrictions There are no statutory nationality restrictions. Regulation of the employment relationship 7. How is the employment relationship governed and regulated? The employment relationship is governed and regulated by:. Collective agreements if any , such as works agreements with the works council or collective bargaining agreements with the union.
Written employment contract The terms of the employment for example, working hours, remuneration, holidays, and benefits are usually agreed on in a written employment agreement. Except for fixed-term employment and non-compete obligations which must be in writing , verbal agreements are also permissible, but are not recommended. In addition, the employer is obliged to provide a written statement of the employment terms to the employee within one month of the commencement of employment. The written statement must include, in particular:. Start date of the employment. Salary and other elements of the remuneration.
Employment agreements often include additional provisions, such as:. The flexibility to assign other comparable duties. Non-compete requirements for approval of other occupations. Provisions regarding the return of company property. Deadlines to claim rights based on the employment relationship. Implied terms A minimum standard of employment is provided by statutory law, including regulations on: Collective agreements Additional rights and duties, which overrule less favourable terms in the employment agreement, can be provided in:.
Works agreements agreements between the employer and the works council. Works agreements are binding within the scope of their application on the employer, the works council and the employees except for managing employees. Works agreements are not permissible to the extent that they cover the same topic as is already provided for in a collective bargaining agreement.
Collective bargaining agreements are usually only binding if both the:. Employer is a member of an organisation that entered into the collective bargaining agreement with the union or the employer itself has entered into that agreement with the union. Employee is also a member of the union. In addition, collective bargaining agreements can be declared generally applicable by the government. A collective bargaining agreement can also apply if it is referred to in the employment agreement, or if it is usual best practice to apply the agreement.
What are the main points to consider if an employer wants to unilaterally change the terms and conditions of employment? An employer's right to unilaterally change the terms of employment is very limited, and whether an employer can unilaterally change the terms and conditions of employment depends on the wording of the employment agreement. For example, employers can unilaterally assign to the employee another job role if it is comparable to his existing role and does not result in a change of remuneration. In addition, it may be possible to withdraw certain benefits such as a company car or even bonus payments if both the:.
Reasons for the withdrawal are explicitly provided for in the employment agreement. However, this is only justified if the termination is supported by sufficient reasons for example, relocation for operational reasons and the changes to the terms are reasonable. The threshold is high for determining whether or not such changes are reasonable. Is there a national or regional minimum wage? The minimum wage is reassessed every two years. As of 1 January the minimum wage will amount to EUR9. These rules, in principle, do not apply to minors, volunteers and former long-term unemployed workers.
However, this is always subject to a case-by-case assessment. It is the subject of some contention which part of the remuneration must be taken into account when calculating the minimum wage for example, whether bonus payments should be taken into account. Recently, the Higher Labour Court of Berlin-Brandenburg Landesarbeitsgericht Berlin-Brandenburg decided that an employer must not credit the employee's entitlement to holiday and Christmas bonus against the obligation to meet the legal requirements of the Minimum Wage Act.
By contrast, all payments granted in return for effectively performed labour are credited against the obligation to pay minimum wage according to several recent rulings of the Federal Labour Court Bundesarbeitsgericht. If the statutory minimum wage is not paid, employees can claim the difference between their actual remuneration and the minimum wage from their employer.
In addition, subcontractors can not only claim payment of the minimum wage from their employer, but can also claim it from the main contracting company. Restrictions on working time Are there restrictions on working hours? Can an employee opt out on either an individual or collective basis? Working hours Under the Working Hours Act Arbeitszeitgesetz , daily working hours must not exceed eight hours per working day, and based on six working days per week Monday to Saturday , employees must not work more than 48 hours per week.
However, this can be extended to up to ten hours per working day, if within six months or 24 weeks, the average working time does not exceed eight hours per day. In principle, this also applies to night and shift workers. However, if the working time for night and shift workers is extended to up to ten hours per day, the average working time within one month or four weeks must not exceed eight hours. It may be permissible to extend the working hours to more than ten hours per day under collective bargaining agreements Tarifvertrag or a works council agreement Betriebsvereinbarung.
However, it is not possible to extend the statutory limits under an employment agreement. Work on Sundays and public holidays is generally prohibited. There are exceptions available for workers in the service industry. However, work on Sundays must be compensated by corresponding time off within the following two weeks or eight weeks in the case of work on public holidays. Rest breaks A working day consisting of more than six but no more than nine hours requires a previously determined minute rest break, which may be split into two breaks of 15 minutes.
A minute break must be granted after six hours of work in the case of a working day of more than nine hours. At the end of the working day, an uninterrupted rest period of a minimum of 11 hours must be granted. During this rest period the employee must not be subject to any obligations towards his employer which prevent him from freely enjoying his time off.
Very severe breaches may even constitute a criminal offence. It is not possible to opt out of the working time restrictions. However, the Working Time Act does not apply to managing employees leitende Angestellte. Shift workers See above, Working hours. Is there a minimum paid holiday entitlement?
Minimum paid holiday entitlement Under the Federal Holiday Act Bundesurlaubsgesetz the minimum statutory annual holiday entitlement is 20 days based on a five-day working week and 24 days based on a six-day working week. However, in practice, most employers grant more paid holiday; between 27 and 30 days' paid holiday are very common. Employees are entitled to a holiday pay some sort of continued payment of the salary for the minimum statutory annual holiday entitlement, which is calculated on the basis of the employee's average salary including variable remunerations in the 13 weeks prior to the holiday.
In general, employees must take their annual holidays during the calendar year. Otherwise, it is forfeited. However, unused holiday can be carried forward until the 31 March of the next calendar year if the employee was unable to take the holiday due to operational or personal reasons. If any holiday entitlement still remains at the end of the employment, employees can claim financial compensation for the holidays not taken. Public holidays Public holidays in Germany local and national are as follows:.
New Year's Day 1 January Epiphany some states 6 January Corpus Christi some states 20 June Day of Reformation some states 31 October All Saints' Day some states 1 November Illness and injury of employees What rights do employees have to time off in the case of illness or injury? Are they entitled to sick pay during this time off? Who pays the sick pay and, if the employer, can it recover any of the cost from the government? Entitlement to paid time off The Continued Remuneration Act Entgeltfortzahlungsgesetz grants employees once they have been employed for four weeks six weeks' statutory sick pay, unless the employee has materially contributed to the sickness.
If an employee subsequently falls ill due to the same underlying illness, the six-week period will recommence if six months have elapsed since the end of the last sick leave, or if one year has elapsed since the beginning of the first sick leave. If the underlying cause of illness is a new one, the six-week period automatically commences again.
Entitlement to unpaid time off If employees are unable to perform their contractual duties because of a physical or mental incapacity then they will be relieved from work. The employer must be informed immediately and a medical certificate is required where there are three consecutive days of absence due to illness. Recovery of sick pay from the state Employers that employ no more than 30 employees are entitled to apply to the employers' cost sharing fund, from which they can recover sick pay. The fund is contributed to by employers Aufwendungsausgleichsgesetz. Statutory rights of parents and carers What are the statutory rights of employees who are:.
Parents including maternity, paternity, surrogacy, adoption and parental rights, where applicable? Carers including those of disabled children and adult dependants? Maternity rights During pregnancy and until four months after the childbirth, it is illegal to terminate the employee's employment unless the competent public authorities have granted their prior consent. In practice, public authorities will only grant this consent under exceptional circumstances for example, the shut-down of the entire business. Expecting mothers are prohibited from working six weeks prior to and eight weeks after childbirth.
The employee can expressly waive this protection in relation to the pre-birth period and continue to work. However, prohibition from work after childbirth is mandatory and cannot be waived. Maternity leave starts automatically without any notice. However, if the employee has a medical certificate which states that the health of the mother or the unborn child will be endangered due to the employment, the employer may be prohibited from employing the employee before the start of the six-week period before childbirth individual maternity protection period.
During the individual maternity protection period the employee is entitled to full pay. The remuneration is calculated on the average remuneration of the last 13 weeks or of the last three months prior to the beginning of the month of pregnancy. During the statutory maternity protection period the employer is not obliged to pay the full remuneration, since the employee receives a maternity allowance up to EUR13 per day from the statutory health insurance or the Federal Insurance Office depending on whether the employee is a member of the statutory health insurance or not.
However, to the extent that the average net remuneration of the last three months exceeds the maternity allowance, the employer must pay the difference to the employee. The employer may be able to recover certain amounts from the authorities. Paternity rights See below, Parental rights. Surrogacy rights See above, Maternity rights. Adoption rights Parental rights and duties also apply to adoptive parents see above, Paternity rights.
Parental rights In addition to maternity leave, both female and male employees are entitled to take parental leave up to the third birthday of each child. The employee and employer can agree to transfer up to 24 months of parental leave to a point in time before the child's eighth birthday. A parental allowance is paid by the authorities for a maximum duration of 12 months of parental leave 14 months if the other parent decides to go on parental leave as well.
An additional option, ''Parental Allowance Plus'', is also available for parents of children born on or after 1 July , which gives employees the right to receive the parental allowance from the government for a period of up to 24 months or, if both parents decide to take parental leave, parental allowance can be shared between the parents for a period of up to 28 months. The employee must inform the employer about the date of commencement and duration of the leave at least seven weeks before they want to take the leave, and the employer cannot refuse this request. During the parental leave, employers are not obliged to pay the employee's salary.
Under the Parental Allowance Plus system, employees will receive the same amount of remuneration but stretched over the month period. The state pays the parental allowance. Termination of employment is invalid during times of parental leave, unless the competent public authorities have granted their prior consent. Carers' rights Employees can take up to ten days off work to take care of close relatives who are in urgent need of care. The employer must be informed about this without undue delay. The leave of absence is unpaid, unless stated otherwise in a collective bargaining agreement.
Employees can also take nursing care leave of up to six months for a close relative. The employee must give the employer at least ten working days' written notice prior to the commencement of the leave. The term ''close relative'' is defined very broadly and governed by the statutory provisions of the public nursing insurance. Only employers who usually employ more than 15 employees are subject to nursing care leave obligations.
Employers are not obliged to continue to pay the remuneration during a period of nursing care leave. However, an obligation to continue to pay can arise from other provisions under specific conditions for example, in the case of short periods of urgent leave. Employees enjoy special protection against dismissals from the moment they claim short-term release or nursing care leave until the end of the leave period.
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Continuous periods of employment Does a period of continuous employment create any statutory rights for employees? If an employee is transferred to a new entity, does that employee retain their period of continuous employment? If so, on what type of transfer? Statutory rights created The following rights only apply after specific periods of continuous employment:.
After four weeks of continuous employment the employee is entitled to sick pay. After six months of continuous employment the employee is entitled to:. In addition, the statutory notice periods increase according to the length of service, varying from two weeks' notice during the six-month probation period, four weeks' notice after probation has been passed and to up to seven months' notice after 20 years of service.
Consequences of a transfer of employee In the case of a transfer of business, the year s of service with the previous employer must be recognised by the new employer by operation of law. Fixed term, part-time and agency workers To what extent are temporary and agency workers entitled to the same rights and benefits as permanent employees? To what extent are part-time workers entitled to the same rights and benefits as full-time workers?
Temporary workers The majority of employments are indefinite. However, fixed-term contracts are possible and common in certain industries. A fixed-term employment is permitted without any justification for a period of up to 24 months provided that the employee has no earlier employment with the same employer. During that month period, a maximum of three extensions are permitted. The fixed-term period can be extended to more than 24 months, with justification for example, where the employee is a replacement during parental leave, or employed for a specific project. Fixed-term employment agreements must be agreed on in writing wet ink and must be signed before the commencement of employment.
Fixed-term employees are generally entitled to the same rights as full-time employees. Agency workers Agency work is heavily regulated in Germany. The employer agency must obtain a licence from the unemployment agency to lease employees to other companies customers. If the agency does not have the licence, the work the employee does through the agency for the customer automatically creates an employment relationship between the employee and the customer.
In addition, non-compliance with the rules on agency work can result in administrative fines for both the agency and the customer. Agency workers must be employed in the same customer operation but on a temporary basis. The maximum time period is 18 consecutive months. Previous placements are taken into account, if the break between the previous and current placement was three months or less. The maximum time period can be extended or abbreviated by collective bargaining agreement Tarifvertrag.
The law on agency work is based on the principles of ''equal pay'' and ''equal treatment''. According to these principles, agency workers are entitled to the same remuneration and benefits as the customer's permanent employees. However, if the agency applies a specific collective bargaining agreement, a lower remuneration may be possible. Part-time workers Part-time workers cannot be discriminated against for working part-time. Therefore, in general, they must have the same rights as full-time employees. After six months of full-time employment an employee can request to reduce their working hours.
This request must be filed three months prior to the requested start of the reduced working hours. The employer and employee must negotiate and agree on the reduction of working hours. If no agreement can be achieved the employer can reject the request, but only for operational reasons. The rejection must be served at least one month before the start date of the reduced working hours, otherwise, the request will be considered approved.
However, these rules do not apply to companies with up to 15 employees. Employees can apply to work part-time between 10 to 30 hours during parental leave. The request must be submitted to the employer at the latest seven weeks before the anticipated commencement of the part-time work. The employer can reject this request but only for urgent operational reasons. The employer must make a decision in writing within four weeks of the start date of the reduced working hours, otherwise, the request will be considered approved.
Are there any requirements protecting employee privacy or personal data? If so, what are an employer's obligations? Employees' data protection rights Personal data including the personal data of employees is protected in Germany as follows:. Specific data protection obligations can be contained in works agreements. In particular, the fundamental right of informational self-determination the capacity of the individual to determine in principle the disclosure and use of their personal data is a significant constitutional guarantee which applies to employment relationships in Germany.
Employers' data protection obligations The collection, processing and use of personal data are only lawful in any of the following circumstances:. Statutory provisions permit or prescribe it. The data subject employee has consented. The Federal Data Protection Act permits the employer to utilise personal data of employees if either:. The use of the respective data is necessary for the establishment of an employment relationship. The use of the respective data is necessary for the performance or termination of the employment relationship after the relationship has commenced. The use is specified in the works agreements.
The appointment of a data protection officer is required if more than ten individuals deal with the automated processing of personal data. In addition, the processing of personal data in particular, the implementation of technical means to process such data is often within the remit of the mandatory co-determination rights of the works council. US businesses signed up the EU-US Safe Harbour system which, until recently, was considered to offer a sufficient level of data protection. Businesses that transfer personal data to the US should review this very carefully.
Discrimination and harassment What protection do employees have from discrimination or harassment, and on what grounds? Protection from discrimination Generally, discriminatory and harassing behaviour in the context of an employment relationship is prohibited under German law and can lead to the employee making a claim against the employer for:.
The employer to cease its discriminatory behaviour. The Equal Treatment Act Allgemeines Gleichbehandlungsgesetz AGG contains special rules prohibiting discrimination in the employment relationship based on specific characteristics provided for in the Act. The following characteristics are protected from discrimination:. However, discrimination and harassment are still generally prohibited even where they do not concern any of the above characteristics. Discrimination is defined as unequal treatment based on one or more of the above characteristics, which is not justified AGG.
The following types of discrimination are prohibited:. Treating an individual less favourably because of a characteristic protected by the AGG or any other unjustified reason. Direct discrimination can be lawful if the employer can objectively justify the treatment. Applying a policy, criterion or practice to all individuals in a group, which disproportionately disadvantages individuals with a characteristic protected by the AGG or for any other unjustified reason, unless the discrimination is objectively justified.
Subjecting an individual to a detriment or dismissal because they have taken action in relation to a protected characteristic for example, submitted a discrimination grievance. However, not every instance of unequal treatment constitutes discrimination. Discriminatory treatment can be justified if a substantial and vital work-related requirement can be demonstrated.