Archive: Monthly Dose Employment Law

(1) the German Federal Labor Court (BAG) on offsetting alternative

earnings despite paid garden leave under a termination agreement with
"Sprinter Clause",

(2) the BAG on the abusive nature of compensation claims for discrimination filed by “AGG hoppers”,

(3) the BAG on the inadmissibility of sending election documents for works council elections in a blanket manner,

(4) the BAG on the group privilege in the context of employee leasing when the assignment of an employee occurs over an extended period between group companies,

(5) the BAG on the (non-)repeat of the negotiation procedure on employees participation in the formation of an SE via a shelf company, and

(6) the Regional Labor Court (LAG) Baden-Württemberg on the employee
status of freelance lecturers due to the lack of personal dependence in
crowdwork-like activities

(1) the Federal Labor Court (BAG) on the co-determination right of the works council regarding the adjustment of remuneration for an exempted works council member in accordance with legal requirements,

(2) the BAG on collective bargaining regulations for overtime pay for part-time employees,

(3) the Regional Labor Court (LAG) Hamm on the entitlement to a wage increase based on the principle of equal treatment in the event of non-signing of new contracts,

(4) the LAG Niedersachsen on the replacement of consent for the classification of an employee into the non-tariff sector, and

(5) the European Court of Justice (ECJ) on the obligation to record working hours for domestic workers.

(1) the German Federal Labor Court (BAG) on the remuneration of rest breaks by allocation at the employer’s reasonable discretion,

(2) the BAG on the required minimum difference between non-tariff remuneration and the highest tariff remuneration,

(3) the Regional Labor Court (LAG) of Berlin-Brandenburg on the reclaiming of continued remuneration in case of doubtful incapacity for work,

(4) the LAG Lower Saxony on grossly negligent violation of safety instructions as an extraordinary reason for termination and (un)reasonable continued employment, as well as

(5) the LAG Cologne on the necessity of carrying out a prevention procedure pursuant to Section 167 (1) of the Ninth German Social Code (SGB IX) also during the probationary period.

(1) the Federal Labor Court (BAG) on the relevance of the regular place of employment for holiday allowances,

(2) the Regional Labor Court (LAG) of Baden-Württemberg regarding co-determination of the works council in the introduction of desk sharing and a clean desk policy,

(3) the LAG Duesseldorf on the inflation compensation during parental leave under collective bargaining agreement, and

(4) the LAG of Baden-Württemberg on remuneration entitlements of employees in dismissal lawsuits in case of malicious omission to other earnings (already confirmed by BAG in its decision dated 15 January 2025),

(5) the European Court of Justice (ECJ) and BAG on overtime pay entitlements of part-time employees.

(1) the German Federal Labour Court (BAG) on circumstantial evidence in the case of delivery of a termination letter via registered mail with delivery confirmation,

(2) the Regional Labor Court (LAG) Nuremberg concerning employer’s liability for damages due to delayed target setting for performance based bonus payments,

(3) the LAG Dusseldorf on the employer's right of direction with regard to employees’ obligation to wear protective clothing,

(4) the Regional Social Court (LSG) Munich regarding the status question of self-employment or dependent employment in the case of spouses working together, and

(5) the European Court of Justice (ECJ) on the consultation obligation in cases of mass dismissals due to retirement.

(1) the German Federal Labour Court (BAG) on the unconstitutionality of collective bargaining agreement provisions that differentiate between bonuses for night work and night shift work,

(2) the Higher Regional Court (OLG) of Hamburg on the obligation to delete anonymous reviews on employer review platforms,

(3) the Regional Labour Court (LAG) of Lower Saxony on the replacement of the works council chairman's consent to a dismissal of a released works council member for time fraud during works council duties,

(4) the LAG Cologne on the possibility of rejecting a dismissal due to lack of original power of attorney on the grounds of forfeiture and

(5) the European Court of Justice (EJC) on the inadmissibility of subsequent negotiations on employee participation in an SE (Societas Europaea).

(1) the German Federal Labour Court (BAG) on the effective election of a works council even if there are fewer candidates then stated under statutory provisions,

(2) the BAG on statutory provisions of the General Terms and Conditions as international mandatory law despite a different choice of law by the parties under Article 8 (1) s. 2 Rom I-Regulation,

(3) the Regional Labour Court (LAG) of Dusseldorf on the non-existent right to compensation in the event of delayed provision of information under the GDPR,

(4) the LAG Niedersachsen on the burden of presentation and proof in the light of Sec. 37 (4) German Works Constitution Act (Betriebsverfassungsgesetz, BetrVG) in connection with the remuneration of released works council members by considering hypothetical development of the carrier and the remuneration, and

(5) the LAG Mecklenburg-Vorpommern on the requirements for the declaration of leave of absence when granting leave.

(1) the German Federal Labour Court (BAG) on content of works council’s seminar/education entitlement under the Works Constitution Act,

(2) the BAG on a pro rata increase in an above-tariff allowance in the event of working hours increase,

(3) the Regional Labour Court (LAG) Rheinland-Pfalz on the requirements for the burden of explanation and proof of the employer's objection of malicious failure to earn other wages in the case of the employee's claims for delayed acceptance of wages,

(4) the LAG Cologne on employee’s entitlements for performance based bonus payments in case of delayed target setting by the employer,

(5) the Labor Court (ArbG) Hamburg on works council’s co-determination rights on the use of ChatGPT and other artificial intelligence systems and

(6) the European Court of Justice (EuGH) on employees’ entitlement for compensation if unused (statutory) vacation entitlements upon early retirement.

(1) the German Federal Labour Court (BAG) on offsetting of vacation entitlements in dual employment relationships,

(2) the BAG on the submission application documents to the works council in digital form,

(3) the Regional Labour Court (LAG) Baden-Württemberg on the obligation to provide information and removal of warnings in accordance with the General Data Protection Regulation (Datenschutz-Grundverordnung, DSGVO) in the employment,

(4) the LAG Saxony on the employer's obligation to bear the costs of simultaneous translation for a works meeting (Betriebsversammlung) and

(5) the Labor Court (ArbG) Aachen on the “JobRad model” and employee’s obligation to pay leasing rates in the event of employees’ illness.

(1) the German Federal Labour Court (BAG) on protection against dismissal and transfer of a managing director's employment relationship,

(2) the BAG on the application of the German Federal Holiday Act to third-party managers of a GmbH,

(3) the BAG on Hypotax procedure for temporary secondments,

(4) the Regional Labour Court (LAG) Mecklenburg-Vorpommern on the reemployment claim after the expiry of the notice period and conclusion of a settlement agreement if continued employment is possible,

(5) the LAG Hamm on the (in)effectiveness of the withdrawal of a company car due to a changed work assignment and

(6) the Court of Justice of the European Union (ECJ) on strengthening the fundamental right to effective legal remedy for temporary employees.

(1) of the German Federal Labour Court (BAG) on the requirements for the “planned” operational change within the meaning of Section 125 (1) sentence 1 Insolvency Code (Insolvenzordnung, InsO) in a reconciliation of interests with a list of names to justify the presumptive effect of the urgent operational requirements of the termination,

(2) of the BAG on shaking the evidentiary value of certificates of incapacity for work after ordinary termination of the employment relationship by the employer,

(3) of the BAG on the effectiveness of terminations in the event of incorrect or omitted notification of mass layoffs under Section 17 of the German Dismissal Protection Act (Kündigungsschutzgesetz, KSchG),

(4) of the German Regional Labour Court (LAG) Hamm on continued payment of wages in the event of officially ordered of COVID 19-quarantine despite failure to vaccinate,

(5) of the LAG Baden-Württemberg on the permissibility of a unilateral conversion of previously granted annual special payments to early, monthly partial payments and their offsetting towards the statutory minimum wage,

(6) of the German Regional Social Court (LSG) Lower Saxony-Bremen on the effects of a minority shareholding by a third-party managing director in the parent company on the social security status of the subsidiary and

(7) of the Court of Justice of the European Union (ECJ) on the entitlement to the transfer of annual leave in the event of an officially ordered COVID 19-quarantine for periods before 16 September 2022.

(1) of the Federal Labour Court (BAG) on employee's duty to get novice on services assigned to him by the employer during his free time,

(2) of the BAG on the works council's right of co-determination on employer’s ordering of ban on private mobile phone use during working hours,

(3) of the Schleswig-Holstein Regional Labour Court (LAG) on the payment of wage tax and social security contributions as a special fulfilment objection by the employer,

(4) of the LAG Cologne on the offsetting of credit hours on working time accounts by the employer and

(5) of the European Court of Justice (ECJ) on the prohibition of wearing religious signs at the workplace in public administration.

(1) the German Federal Labour Court (BAG) on data protection law based requirements to collective agreements,

(2) the BAG on on-call work and scope of the 20 working hours implication,

(3) of the German Regional Labour Court (LAG) Mecklenburg-Vorpommern on written form requirement of “turbo clauses” in court settlement agreements at dismissal lawsuits,

(4) the LAG Schleswig-Holstein on legal implications of cut-off dates for target agreements in bonus agreements,

(5) the German Federal Social court (BSG) on social security law-based status of shareholder-managing directors of corporates in service agreements with third parties, and 

(6) of the Court of Justice of the European Union (ECJ) on discrimination effects of overtime work remuneration clauses with minimum total working hours requirements for both full time and part time employees.

(1) the German Federal Labour Court (BAG) on the obligation to provide information in the context of a transfer of operations on non-applicable collective agreements,

(2) the BAG on the termination without notice of an employee due to insulting statements in a private chat group consisting of a limited circle of work colleagues,

(3) the German Regional Labour Court (LAG) Hamm on the burden of presentation and burden of proof for remuneration claims arising from overtime,

(4) of the LAG Nuremberg on the evidential value of the delivery of a notice of termination by registered, and

(5) of the LAG Mecklenburg-Vorpommern on the recovery of salary due to non-performance of work in the home office.

Further, we provide a summary on recent legislative developments in German Employment Law, which came into force on 1 January 2024.

(1) the Federal Labour Court (BAG) on the deletion of the “thank-you formula” in the reference letter as a prohibited measure,

(2) the Higher Regional Court (OLG) of Munich on the invalidity of the contractual limitation of variable remuneration for a managing director to the duration of the appointment to the executive body,

(3) the Higher Labour Court (LAG) of Cologne on the entitlement to a sales based bonus payment on the basis of the principle of equal treatment under employment law in the case of jumper activities,

(4) of the LAG Niedersachsen on the ordinary termination of a works council member in a matrix organisation and

(5) the LAG Hessen on the unlawfulness of a ban on the works council chairman.

(1) the German Federal Labour Court (BAG) on the conflict of interest between the activity as works council chairman and the office as company data protection officer,

(2) the BAG on the burden of presentation and proof for the existence of an employment relationship as a result of concealed temporary employment for the defendant (potential) hirer,

(3) of the LAG Baden-Württembergon the forfeiture of a claim for correction of an employer's reference,

(4) of the LAG Mecklenburg-Vorpommern on the general exemption from early and late shifts and Saturday work due to childcare and

(5) the Court of Justice of the European Union (ECJ) on the (non-)existence of a claim for damages in the event of a breach of the provisions of the GDPR without consequences.

(1) of the German Federal Labour Court (BAG) on the liability of a Managing Director of a GmbH in the event of failure to pay the minimum wage,

(2) of the BAG on the use of recordings from open video surveillance in dismissal lawsuits at labour court,

(3) of the European Court of Justice (ECJ) on the compability of public sector’s temporary work (Personalgestellung) with EU-directive on temporary work

(4) of the Higher Labour Court (LAG) Hamm on the possibility of restricting the employer's directive right (Weisungsrecht) in the context of the titling of a (continued) employment claim, and

(5) of the LAG Munich on the scope of the works council's imitative right when introducing a working time recording system.

(1) of the German Federal Labour Court (BAG) on equal pay entitlements for part-time employees in a minor employment,

(2) of the BAG on the (unilateral) reduction of the Christmas bonus in the event of continued incapacity for work,

(3) of the LAG Schleswig Holstein on the loss of the probative value of a certificate of incapacity for work and

(4) of the European Court of Justice on the scope of the obligation to forward the notification of collective redundancies to the authority

(1) the German Federal Labour Court (Bundesarbeitsgericht, BAG) on the effectiveness of a transfer abroad ordered by the employer,

(2) the BAG on the legality of a termination for operational reasons due to the transfer of tasks to a sister company,

(3) the BAG on the effectiveness of lower collectively agreed remuneration of temporary workers,

(4) the BAG on the reimbursement of a recruitment commission by the employee and

(5) the German Federal Administrative Court on the co-determination of the staff council to social media with a comment function.

(1) the German Federal Labour Court (Bundesarbeitsgericht, BAG) on the fiction of an unlimited employment due to granting of remaining vacation entitlements after the expiration of a fixed term employment,

(2) the BAG on the statute of limitations on vacation entitlements,

(3) the BAG to consider the proximity to pension in the social selection at dismissals due to operational reasons,

(4) the BAG to the readjustment of employee’s will to perform his/her job activity in case of default of acceptance wages dismissal lawsuits as well as

(4) of European Court of Justice (ECJ) on the forfeiture of vacation entitlements in the event of incapacity to work during partial retirement.