I support you in conflicts with your employer or colleagues. Together with you, I will develop a strategy to solve your problem. A conflict does not always have to escalate into a long legal dispute in court. I therefore recommend that you seek legal advice from a lawyer at an early stage.
Before signing an employment contract, it is better to take a very close look and have the contract checked. This makes it easier to renegotiate.
If you sign an employment contract blindly, you may be left out in the cold later on. Once the contract has been concluded, most of its contents become binding.
However, employment contracts can contain a lot of things that you think should not be there. If you want to be on the safe side, you should have the employment contract checked by a lawyer beforehand.
If you have not received any or too little pay for the work you have done, you can claim this from your employer. Here it is important to know exactly when the entitlement to wages is due and how the wages are calculated. Above all, you should check whether an exclusion period applies to you. If you do not assert your claims within the deadline, they will expire.
If the employer has promised you a bonus, you should check carefully whether this promise is still valid. For example, your employer may exclude or revoke an entitlement to payment of a bonus or reclaim it.
If you have concluded a fixed-term employment contract, it is worth checking whether the fixed term is effective. If it is invalid, you will be in a permanent employment relationship.
Part-time employees are not in a worse legal position than others. However, your employer may not adhere to the agreed working hours.
In particular, the employer must reach an agreement with you on working hours. If there is no such agreement, the employer cannot simply call the employee in or even send them home depending on their work requirements, but must adhere to the contractually agreed weekly and daily working hours.
The agreement must also specify a certain duration of weekly and daily working hours. be. If this has not been done, a weekly working time of ten hours is deemed to have been agreed. If the duration of the daily working time is not specified, the employer must make use of the employee’s work performance for at least three consecutive hours.
For reasons of social and health protection, employees may generally not be employed for more than eight hours per working day (Monday to Saturday).
An extension of the working time to a maximum of ten hours per day is only permitted if the average working time does not exceed eight hours per day in a legally defined compensation period. In addition, further statutory restrictions apply to employees’ availability to the employer, particularly with regard to night work and rest periods.
Many conflicts revolve around vacations. The employer often does not grant leave or cancels it. He grants less or no vacation in the event of illness or pays less salary during the vacation period.
What many people do not know is that you are not entitled to take leave without your employer’s permission. This means that you will not be able to take your vacation. In this case, leave must be claimed in court if necessary.
In principle, you are also entitled to vacation if you have been ill.
You must be paid the salary you would have received if you had worked. There are exceptions to this.
Pregnant women and new mothers are comprehensively protected by law.
There are protection periods and, in certain cases, employment bans. If you are not allowed to work, you are entitled to maternity benefit and maternity protection pay. You are also fully protected against termination.
Employees who want to take a career break or only work to a limited extent during the first three years of their child’s life are entitled to parental leave.
This means that not only the mother but also the father is entitled to parental leave.
You can normally take parental leave for a maximum of the first three years of your child’s life. Parental allowance is currently available up to a maximum of EUR 1,800.00 per month. As a rule, the maximum period of entitlement is twelve months. If both parents claim parental allowance, the maximum period of entitlement increases to 14 months.
Many people are discriminated against in the workplace but do not know that they can defend themselves against this.
Discrimination is the unjustified disadvantaging of a person on the basis of characteristics that they cannot influence themselves, in particular through their performance.
Such characteristics are primarily gender, ethnic origin, religious affiliation, age or sexual preferences.
In certain cases of discrimination, compensation is available. If you have any questions in connection with discrimination that may have been committed and/or is the fault of a colleague, a superior or an employee and/or is attributable to your employer, I will be happy to advise and support you.
Please note that the law requires you to observe short deadlines for asserting your claims.
Severely disabled employees have extensive additional rights. However, you can only claim this if you have been recognized as a severely disabled person.
In order to obtain recognition as a severely disabled person, you must first submit a corresponding application to the relevant office. Which office is responsible varies from state to state; in Berlin, the State Office for Health and Social Affairs is responsible.
Employers may not discriminate against severely disabled employees because of their disability. For example, only severely disabled people (and those with equivalent status) can claim special protection against termination of their employment contract by their employer. The statutory additional leave is also only available to severely disabled employees.
If you are unable to perform the work required under your individual employment contract, the employer must continue to pay your salary for six weeks.
At the end of the six-week period during which your employer continues to pay your salary, you can claim sickness benefit from your health insurance fund.
If you are healthy again after a six-week illness and go back to work, and if you then become unfit for work again, but this time due to another illness, you are again entitled to six weeks’ continued remuneration.
You must report your illness.
What many people don’t know: The employer can also terminate your contract if you are ill.
Under certain circumstances, the employer may terminate the employment relationship due to long-term illness or frequent short-term illnesses.
As a rule, a warning is a necessary prerequisite for the employer to be able to terminate the employment contract for conduct-related reasons. It is therefore a precursor to dismissal and should be taken seriously.
The following three requirements must be met for a warning letter to be issued:
Firstly, the employer must describe the warned behavior as precisely as possible, i.e. he must state the date and time of the breach of contract. General references to “frequent lateness” or “poor work performance” do not constitute warnings.
Secondly, the employer must clearly reprimand the warned behavior as a breach of contract and request the employee to refrain from this behavior in the future.
Thirdly, the employer must make it clear that the employee must expect to be dismissed in the event of a repeat offense.
Not every change in work duties is a transfer and not every transfer is lawful. A transfer is usually understood to mean
The mere withdrawal of work duties, i.e. the release of the employee from work, is not a transfer.
You do not have to tolerate every transfer, but only those that the employer is entitled to. This results from the employment contract and the previous work assignment.
Of course, it is not forbidden for employers and employees to reach an amicable agreement on a particular transfer, i.e. to settle a transfer desired by the employer and initially rejected by the employee by mutual agreement and perhaps find a compromise. Then they have supplemented the employment contract with such an agreement, which is possible at any time.
As an employee, you are generally not legally entitled to a severance payment when your employment relationship ends.
Although many employees take it for granted that they are “entitled” to a severance payment if their employer terminates their employment contract, this is simply legally incorrect.
Even an action for protection against dismissal does not entitle dismissed employees to a severance payment. Such an action is – on the contrary – aimed at establishing in court that the dismissal was invalid, i.e. that it did not terminate the employment relationship. If the lawsuit is successful, the job is saved, so the payment of severance pay is not an issue.
The amount of the severance payment is also not fixed. In court or out-of-court negotiations on the amount of severance pay, the rule of half to a full month’s gross salary per year of employment is often applied. Depending on the employer’s performance, the negotiating situation and negotiating skills, the severance payment may be higher or lower.
In general, you can request a qualified reference from your employer. You therefore generally do not have to be satisfied with a simple certificate.
However, a simple reference is sufficient in exceptional cases if you were only employed for a very short time (e.g. a few days or weeks) so that your employer has no opportunity to assess your performance.
Managers represent the interface between the employer and the workforce within the company. Legally, they are on the side of the employees, but in some cases assume employer functions. This position therefore gives managers special powers, but also demands special responsibilities, so that they occupy a special position in the company. The legislator has also recognized this and reacted to it with special legal regulations. Essentially, however, not in favor of managers. It is therefore essential to be aware of these special regulations in order to be able to take appropriate precautions when concluding a contract.
Particularly when concluding employment contracts for managers, the special position should be taken into account at an early stage. Clear rules and a fair balance between interests can prevent a legal dispute from arising in the event of differences of opinion.
When concluding such an employment contract, the partial weakening of employee protection for managers by the legislator should be counteracted at an early stage.
Managing directors occupy a special position here, as there are only limited employee protection regulations for them. Clear regulations on premature termination should be made in any case. A liability regulation must also always be central. If one is missing, your personal existence could be at stake. This is because an employee is generally only liable for moderate negligence. This does not apply to managing directors. They are liable according to the general rules and thus already for slight negligence. This risk can be significantly minimized contractually, for example by limiting liability to gross negligence and intent and negotiating the shortest possible expiry period for liability claims. This is all the more important if an employee is appointed as managing director, as this may make it easier for him to lose his employment with the company.
In some cases, managers are responsible for the entire coordination and management of parts of the company and even entire operations. A wrong decision here can lead to immense damage as well as loss of sales for the company, so that the liability risk is obvious, especially for managers.
Managing directors must therefore include provisions on liability in their employment contract. Signing a management contract without having it checked beforehand can therefore be very dangerous and is inadvisable.
Executives are exempt from the protective regulations for normal employees.
Managers in particular have extensive knowledge of particularly sensitive company information such as company secrets, customer base and sales figures due to their special proximity to the employer. Such employees and also managing directors can become particularly “dangerous” to the company in the event of termination of the contractual relationship if they move to the competition. Attempts are often made to counteract this in the employment contract by agreeing post-contractual non-compete clauses, sometimes with six-figure contractual penalties.
However, the agreement of such a non-competition clause is subject to strict formal requirements and minimum conditions and can in any case be agreed for a maximum of two years.
The general protection against dismissal for executives is limited in some respects.
In the event of dismissal protection proceedings, the employer can apply at any time without giving reasons for the court to terminate the employment relationship against payment of a severance payment at the discretion of the court.
This means that the employer’s application to terminate the employment relationship – in contrast to normal actions for protection against dismissal – must be granted without an examination of its substantive justification.
Executives are regularly provided with company cars by the employer. Employees are not obliged to use their private vehicle for business purposes, so a provision is often included in the employment contract in this regard. Separate provisions should be made here in the contract simply because of the liability risk.
In the absolute majority of cases, the employer provides a vehicle for business trips and occasionally allows private use as part of the remuneration. Both the one and the other design involve certain risks that need to be assessed. For example, the private use of a company car can be problematic under termination law if it is not expressly authorized.
However, even if the private use of a company vehicle has been approved by the employer, a legal dispute may be inevitable in the event of a traffic accident if there is not only a dispute as to whether a business trip was made at all, but also as to the extent of the employee’s fault in the accident. The principles of internal damage compensation can be decisive here.
The bonus normally paid out is by no means secure in the event of termination. For managers in particular, the employment contract and the reason for the bonus are decisive. In contrast to employees, the principle of equal treatment does not apply to managing directors and board members. This only applies to employees and is not applicable to executive bodies. If a colleague receives a higher bonus in the event of termination of employment, this is not relevant for your own. This also shows that detailed and forward-looking provisions should be made when the contract is concluded.
Executives are only entitled to severance pay if a court determines that the employment relationship has not been terminated by a dismissal. In addition, simply put, the continuation of the employment relationship must no longer be reasonable for the manager or the employer. An entitlement to severance pay may also arise from a social plan. However, there is no such thing as severance pay solely on the basis of dismissal, regardless of how long you have worked for the company.
I advise and represent works councils in all matters of works constitution law and individual employment law, e.g. in the enforcement of participation and co-determination rights or the conclusion of works agreements. Legal costs incurred in pursuing or defending the rights of the works council are generally borne by the employer. I advise and represent works councils (and works council members) out of court, as an expert pursuant to Section 80 (3) BetrVG, as a consultant pursuant to Section 111 sentence 2 BetrVG, in court proceedings before the labor courts and in the conciliation committee.
The rights of the works council are not always respected by the employer. If the works council establishes that the employer is violating a right of the works council, the works council can and should respond.
If the works council is granted a right – be it by law, by a collective agreement or by a works agreement – the works council can insist on compliance with this right. This applies regardless of whether the right is merely a right to information or a “genuine” right of co-determination.
If the employer has to inform or notify the works council of certain matters under the Works Constitution Act, for example, this also means that the works council has a legal right to the information or notification. If the employer does not comply with its duty to inform or notify, the works council can enforce its right to information or notification with the help of the courts. The same applies if the law grants the works council the right to discuss a matter.
If the employer disregards a “genuine” co-determination right of the works council (e.g. a right under Section 87 BetrVG), a distinction must be made: If the works council merely wants to ensure that the employer does not take action in the matter subject to co-determination without the consent of the works council, the works council can assert a claim for injunctive relief. If, on the other hand, the works council wishes to achieve a specific settlement of the matter by concluding an agreement with the employer, it can appeal to the conciliation committee.
Before asserting a claim in court and before appealing to the conciliation committee, however, there is always an out-of-court dialog with the employer. This is because the legislator wants the works council and employer to work together “in a spirit of trust”. The works council would not be complying with the requirement of “trusting cooperation” if it initiated legal proceedings without any prior warning and without having attempted an out-of-court solution (exceptional cases are conceivable).
If the works council establishes that the employer has violated a right of the works council, the first step should generally be to request the employer in writing to comply with the rights of the works council. In the letter to the employer, the works council should describe the identified legal violation as precisely as possible and request the employer to comply with the rights of the works council. If the works council wishes to seek the assistance of the labor court in the event of further disregard of its rights, it should threaten to do so at the end of the letter of formal notice. If the letter from the works council contains the aforementioned points, this is a so-called warning under works constitution law.
If the employer violates the works council’s rights again despite the letter of formal notice from the works council, the works council can appeal to the labor court. As a rule, the works council should seek the help of a specialized lawyer. The employer must pay the lawyer’s fees in accordance with § 40 para. 1 BetrVG.
With the help of the labor court, the works council can enforce both an action by the employer (e.g. provision of information) and an omission by the employer (e.g. omission of the use of technical monitoring equipment).
If the parties involved do not reach an amicable agreement, proceedings before the labor court usually take between 4 and 8 months. In urgent cases, a decision can also be requested by means of a temporary injunction. In these cases, the court’s decision will be issued in a few days/weeks.
The decision of the labor court can be appealed by the party who lost the case. Then the regional labor court has to decide.
In the case of so-called “genuine” co-determination rights (e.g. Section 87 BetrVG), the works council has the right to have the employer reach an agreement with it on a specific matter (e.g. a regulation on working hours). Bringing about such an agreement is not one of the tasks of the labor court. This is because the labor court is there to clarify legal issues and disputed questions of fact. If the employer and works council cannot agree on a matter subject to co-determination, the law provides for the conciliation committee to settle the difference of opinion between the employer and the works council. If the works council does not succeed in reaching the desired agreement with the employer on a matter subject to co-determination, it can appeal to the conciliation committee.
In proceedings before the conciliation committee, the works council may be represented by a lawyer.
Even in the area of “genuine” co-determination rights, there are situations in which the works council can secure its rights with the help of the labor court: If the employer disregards a “genuine” co-determination right of the works council by implementing a measure subject to co-determination without the consent of the works council (e.g. implementation of overtime), the works council can assert a claim for injunctive relief at the labor court.
The employer may be committing an administrative offense if it disregards the works council’s participation rights (see Section 121 BetrVG). In certain cases, the employer may even be liable to prosecution for violating the rights of the works council (see Section 119 BetrVG). In these cases, the works council would theoretically have the option of reporting the employer.
However, the possibility of a criminal or misdemeanor charge should only be considered in extreme cases. All other means must be exhausted beforehand. In particular, an attempt should be made to ensure that the employer respects the rights of the works council with the support of the labor court.
The works agreement is concluded between the employer and the works council representing the employees of a company. Both (employee representatives of a company and the employer) negotiate the individual points of the contractually concluded agreement.
Firstly, the works councils may conclude a works agreement in all matters in which they have a statutory right of co-determination. These are primarily social matters, § 87 para. 1 BetrVG. This includes, for example, the principles for vacation planning within the company, but also matters such as technical monitoring equipment for time recording, Internet use at the workplace, company break regulations, work clothing or occupational safety measures.
Furthermore, the works council has a statutory right of co-determination in certain economic matters. This includes co-determination in the event of operational changes with the right to draw up a social plan if the operational change is associated with significant disadvantages for the employees.
In companies with more than 20 employees entitled to vote, the employer must involve the works council in accordance with Section 99 BetrVG before every recruitment, classification, reclassification and transfer.
The employer must inform the works council comprehensively about the intended personnel measure and obtain the consent of the works council.
As long as the works council has not given its consent, the employer may not implement the measure. If the employer nevertheless wishes to carry out the intended recruitment, classification, regrouping or transfer, it must have the consent of the works council replaced by the labor court.
The conciliation board is an internal arbitration board. It meets, negotiates and decides if the works council and employer cannot reach an agreement.
Therefore, if differences of opinion on matters requiring regulation cannot be settled by mutual agreement, the parties to the company can resolve their disputes in such cases with the help of a conciliation committee.
The conciliation committee consists of representatives of the employer and the works council – these are the “assessors” – and a neutral chairperson, who in practice is practically always a labor judge.
The election to the works council can be contested if the regulations on the right to vote, eligibility or the election procedure were violated during the works council election.
In addition, works council elections can be declared null and void if the illegality of the election procedure is obvious, i.e. if there are truly extreme violations of the relevant regulations.
A social plan is the written agreement between the employer and the works council on the compensation or mitigation of the economic disadvantages suffered by the employees of the company as a result of a change in operations planned by the employer.
An operational change is a fundamental reorientation or restriction of the business, which can go as far as the closure of the business or significant parts of it. It can have considerable disadvantages for the employees concerned. Previously important qualifications may lose their significance due to changes in work organization. Redundancies may be unavoidable, affecting the economic livelihood of employees.
In contrast, the social plan does not concern the question of whether a change in operations should be implemented at all, to what extent it should be implemented and in what period of time it should be implemented.
The object of the social plan is therefore not the operational change itself and the employer’s business decisions associated with it, but solely the adverse economic consequences of the operational change for the employees affected, which are to be compensated or mitigated by the social plan.
The employer must inform the works council comprehensively and in good time of any planned operational changes and consult with it.
If the company partners are unable to reach an agreement on the social compensation plan, the employer or works council can request mediation from the Executive Board of the Federal Employment Agency. This option is rarely used in practice.
As a rule, the conciliation committee is called upon instead.
A social plan can be enforced by the works council via the conciliation committee or via a decision by the conciliation committee if an amicable agreement between the employer and the works council is not possible.
I offer companies ongoing employment law support and advice. I support the management and personnel management in all questions of individual and collective employment law. I not only offer you assistance in solving employment law problems that may arise in individual cases during the implementation of employment relationships – I also provide expert opinions on complex legal issues and develop strategies and solutions together with you. Collective employment law in particular, i.e. works constitution law and collective bargaining law, contains a large number of regulations that must be observed in day-to-day HR practice and carry a not inconsiderable potential for conflict within the company. I advise you on co-determination, represent your interests vis-à-vis the works council in conciliation committee proceedings and conduct negotiations with the works council and the trade union on your behalf when implementing reorganization and restructuring measures.
A well-drafted employment contract gives the employer sufficient leeway for entrepreneurial decisions through guiding agreements and gives the employee a sense of security. In this way, many lengthy legal disputes can be prevented.
It is not uncommon for HR managers in companies to refer to standard employment contracts. Such ready-made templates, in which supposedly only the personal details, salary and vacation days have to be entered, can be found en masse on the Internet. However, caution is advised when using such templates, as they often contain at best what is already contained in the laws anyway. If you want to deviate from these standards or agree individual contract components, it is generally not advisable to use standard contracts. Forms of remuneration, secondary employment and non-competition agreements, company cars, dress codes, employee inventions, exploitation rights, contractual penalties or non-competition clauses are therefore regulated inadequately or simply not at all in general standard works. A model contract also harbors risks with regard to its up-to-dateness if it does not correspond to the constantly changing case law. Therefore, a model contract should at best be the basis for an employment contract tailored to individual needs.
It is best to clarify legally before hiring a new employee whether they are to be employed as an employee or a freelancer. The employment of freelancers/subcontractors requires, for example, that they are largely free to carry out their work. Freelancers may not be subject to the instructions of the client, or only to a very limited extent.
The German Pension Insurance consistently checks this.
Every entrepreneur who employs freelancers or subcontractors can be checked in this regard.
If a bogus self-employment is established, there is a risk of retroactive back payments of social security contributions and wage tax for up to four years. On top of that, you can expect criminal prosecution and fines that could threaten your livelihood.
The termination of an employment contract usually raises many questions in practice. There are strict formal requirements that must be observed. In addition, the question of the validity of the termination of an employment contract is one of the most important issues in employment law. To terminate an employment contract, an employer usually needs a justified reason, unless it is a small company. But even in a small company, a termination can be immoral or invalid for other reasons. I therefore strongly recommend that you consult a lawyer if you, as an employer, wish to give notice to an employee.
A termination agreement (or “severance agreement”) is a contractual agreement between you and your employee that terminates their employment relationship at a specific point in time.
It is the counterpart to the employment contract. While the latter establishes the employment relationship by mutual agreement, the termination agreement terminates it by mutual agreement.
One advantage of a termination agreement compared to ordinary termination is the freedom to determine the date of termination: notice periods can be shortened (or extended) as desired.
In addition, the legal obstacles that you have to consider when giving notice are not an issue with a termination agreement. All provisions of the protection against dismissal only apply to terminations, but not to amicable contract terminations.
Termination agreements are only of interest to you if you are prepared to pay a severance payment.
However, you should be aware that your employee may be threatened with a blocking period. As he has terminated his employment relationship as a result of the termination agreement, the employment agency usually imposes a twelve-week blocking period. The employee will not receive any unemployment benefit for the duration of the blocking period. You are obliged to provide information here.
Every company should take a close look at personnel planning. It should take into account all measures required in the near, medium and distant future to ensure that the company has the employees it needs to achieve its goals. The quality and quantity of employees (right people, right number, right time, right place), adherence to cost plans and planned cost processes as well as individual expectations and operational requirements must be taken into account.
This includes headcount planning, personnel requirements planning, recruitment planning and personnel development planning
The need for personnel planning first arises when a company is founded. It continues when the company is operating in a turbulent environment to which it has to adapt its production program. But even in a calm environment, staff turnover or staff retirements can trigger a need for personnel planning.
Together with the EL-NET GROUP(https://www.elnet.group/), I support you with a fully integrated consulting approach. We can support you in your personnel planning with the four areas of Recruiting, Interim, Placement and Innovation. We enable a holistic view of the central issues of personnel change in the company through active exchange with each other.
One of the duties of management bodies is to ensure compliance with legal regulations within the company.
“Compliance” refers to the set of instruments for the regular monitoring of internal company processes to avoid liability cases, claims for damages and official investigations. It is an integral part of proper corporate governance.
It therefore makes sense to provide comprehensive advice on the creation, effectiveness and maintenance of compliance instruments (internal guidelines and codes, audit procedures, reporting systems, whistleblower hotlines, employee training). In this way, companies achieve maximum liability avoidance and minimum risk for the company itself, its board members and employees.
Companies often require approvals from various government agencies or would like to make use of subsidies. It also happens that certain projects are prohibited. They have to deal with a large number of players, but don’t know who to approach. You need a competent contact person for this. As City Councillor for Economic Affairs, I was responsible for economic development and can therefore support you with your problems in this area.