L as in Labor Laws
Where does it say that?
Where can I find out about my rights in the employment relationship and what the law says?
The rules of german labor law are scattered in many different laws. Unlike many other countries, there is no uniform labor code in which all provisions of labor law can be found. This makes it difficult for employees to obtain an overview of their rights.
In most cases, the legal provisions only stipulate minimum standards, which can only be deviated from in favor of the employee. In some cases, a collective agreement, i.e. an agreement between the employer and a trade union, can also deviate from the legal standard to the detriment of the employee.
The laws contain many indeterminate legal terms that must still be fleshed out by the courts. Many provisions can therefore only be understood if the interpretation of the Federal Labor Court (Bundesarbeitsgericht) is known.
The most important laws in labor law are:
German Fundamental Law
The German Fundamental Law (GG) is the constitution of the Federal Republic of Germany. In the first 20 articles the fundamental rights are anchored. Two articles are particularly relevant to the world of work:
Article 9 GG guarantees the right of employees to form trade unions and to organize themselves.
Article 12 GG regulates the freedom of occupation. According to this, all Germans have the right to freely choose their profession, their workplace or their place of training. The prohibition of forced labor is also regulated here.
German Civil Code
The German Civil Code (Bürgerliches Gesetzbuch, BGB) contains the basic provisions on contracts, for example, which provisions apply to pre-formulated contracts, §§ 305 ff. BGB. Furthermore, §§ 611 ff. BGB contain provisions on the employment contract in particular. In most cases, the BGB defines binding minimum regulations from which deviations are only possible in favor of the employee. The provisions of the BGB always apply in the absence of any other agreement.
The prohibition of the reprimand of employees who exercise their rights is regulated in § 612a BGB.
The periods of notice can be found in § 622 BGB. The period of notice can only be deviated from to the detriment of the employees by means of a collective agreement.
§ 623 BGB stipulates that a notice of termination must be given in writing, i.e. on paper with a handwritten signature.
Dismissal Protection Act
The Dismissal Protection Act (Kündigungsschutzgesetz, KSchG) regulates the conditions under which a notice of dismissal may be given, in particular the special grounds for dismissal. The Dismissal Protection Act only applies if more than ten employees are employed in the company and the employment there has lasted over six months.
The three-week period for bringing an action for protection against dismissal is derived from § 4 KSchG.
Part-Time and Fixed-term Employment Act
4 TzBfG regulates the prohibition of discrimination against part-time and fixed-term employees, § 5 TzBfG provides for a prohibition of discrimination.
8 TzBfG regulates how employees can demand a permanent reduction of their working hours. § 9 TzBfG regulates how an extension of working time can be demanded,
§ 9a TzBfG regulates the right to a temporary reduction of working time (so-called “bridge part-time”).
14 TzBfG stipulates on what terms a fixed-term employment relationship is permissible. § 16 TzBfG regulates the consequences of an invalid fixed-term: the employment relationship is deemed to be for an indefinite period. The three-week period for appealing to the labor court can be found in § 17 TzBfG.
Federal Leave Act
The Federal Leave Act (Bundesurlaubsgesetz, BUrlG) regulates the minimum conditions for the leave entitlement of employees. It amounts to 24 days per year for a 6-day week, § 3 BUrlG. The date of the leave must comply with the preference of the employee, § 7 BUrlG. During the leave, the employee may not engage in any gainful employment that jeopardizes his or her recreation, § 8 BUrlG.
Continued Payment of Remuneration Act
The Continuation of Remuneration Act (Entgeltfortzahlungsgesetz, EntgFG) regulates exceptions from the principle that the employee is only entitled to remuneration if he or she has worked.
The entitlement to continued remuneration exists for public holidays (§ 2 EntgFG) and in the event of illness (§ 3 EntgFG) – in very simplified terms – for the first six weeks of illness if the employment relationship has existed for more than four weeks.
What kind of information the employee must provide the employer in the event of illness is regulated in § 5 EntgFG.
These provisions may not be deviated from to the detriment of the employee (§ 12 EntgFG).
Works Council Constitution Act
The Works Council Constitution Act (Betriebsverfassungsgesetz, BetrVG) regulates how a works council can be established in a company and which rights of co-determination it can claim from the employer.
A works council can be elected in companies with at least five employees, § 1 BetrVG. The employer and the works council should work together in a spirit of trust (§ 2 BetrVG). The size of the works council, depending on the size of the company, results from § 9 BetrVG.
The works council has a variety of rights of information, consultation and co-determination. Co-determination in individual personnel measures such as hiring and transfers (§ 99 BetrVG) and in terminations (§ 102 BetrVG) are particularly relevant in practice.
Minimum Wage Act
The Minimum Wage Act (Mindestlohngesetz, MiLoG) regulates the entitlement of every employee to the minimum wage (§ 1 MiLoG). The minimum wage is 9.60 Euro; from July 1, 2022 on it will be 10.45 Euro.
The minimum wage cannot be effectively waived – except by a court settlement (§ 3 MiLoG).
The minimum wage also applies in principle to internships (yet there are some exceptions); further exceptions are regulated in § 22 MiLoG.
Maternity Protection Act
The Maternity Protection Act (Mutterschutzgesetz, MuSchG) regulates the protection of pregnant women and their child at the workplace during pregnancy and after childbirth. The maternity protection periods during which a pregnant woman may not be obliged to work are six weeks before and eight weeks after childbirth, § 3 MuSchG.
The prohibition on terminating a pregnant woman’s employment until the end of the protection period, but at least four months after giving birth, is found in § 17 MuSchG.
Federal Parental Allowance and Parental Leave Act
The Federal Parental Allowance and Parental Leave Act (Bundeselterngeld- und Elternzeitgesetz, BEEG) gives employees a right to parental leave towards their employer, i.e. an exemption from the obligation to work or a right to a reduction in working hours, § 15 BEEG. Parental leave must be notified at least seven weeks before its beginning, § 16 BEEG.
In addition, the BEEG establishes a claim against the state for parental allowance for the lost wages during the period of caring for and upbringing children (§ 1 BEEG). The parental allowance amounts to 67% of the income before the birth of the child, with a minimum of 300 Euros and a maximum of 1,800 Euros (§ 2 BEEG).
Parental leave is not a prerequisite for entitlement to parental allowance. Recipients of Arbeitslosengeld (unemployment benefits) or Arbeitslosengeld II are also entitled to parental allowance if the other requirements are being met.
Please note: This is a very general overview on the subject of employment contracts under german labor law. If you need help in your particular case, please do not hestitate to contact me or book your appointment. I’m happy to help.