January 2023 - ebl Esch&Kramer

Obligation to record working hours and statute of limitations on holiday entitlements

Posted on 31 January 202331 January 2023 by Kira Laufs

Various labor law changes will come into force with the new year. We provide an overview of the eight most important adjustments and innovations.

1. Recording of working hours: Does my employer have to record my working hours?

In its judgment of September 13.09.2022, XNUMX, the Federal Labor Court (BAG) decided that companies are legally obliged to record the working hours of their employees. The core statement of the BAG is: All employers must record the duration of the working hours, the break times and the overtime of all employees. Precise specifications on how the time recording should be implemented have not yet been made.

Because there is currently no specific legal regulation, employers are currently entitled to some leeway when it comes to time recording. For example, you can decide for yourself whether this should be done electronically or manually. The works council does not have a right of initiative to introduce an electronic time recording system, but it does have a right of co-determination in the design of the system.

🚩 Personal to-do? none!

2. Long-term sickness: Do my holiday entitlements expire if I remain unable to work?

Previously, if the inability to work persisted, the holiday entitlement expired 15 months after the year in which a person fell ill.

The European Court of Justice (ECJ) has confirmed this regulation in principle, but explained that companies have a so-called obligation to cooperate and to inform. If the employees worked during the vacation year before they became unable to work due to illness or were completely disabled, the vacation only expires if the employer has complied with the notification obligation in good time. Employers must therefore enable employees to actually take their vacation before they are absent.

🚩 Personal to-do? none!

3. Certificate of incapacity for work: Do I need the yellow note if I'm ill?

Employees are still obliged to inform their employers about their incapacity to work due to illness. However, the obligation to present the certificate of incapacity for work does not apply. The yellow notes are a thing of the past.

From January 2023, the statutory health insurance funds will instead be informed electronically by the doctors about the periods of incapacity to work. The health insurance companies provide the certificates of incapacity for work electronically so that the employer can call up this data after notification by the employee. However, there is a transitional period for medical practices that do not yet have the appropriate technology.

🚩 Personal to-do? As before, there is still an obligation to inform the employer immediately about an illness. In some medical practices that have not yet switched to digital, the yellow slips can still be issued because there is a transitional period.

4. Voluntary inflation compensation premium: Am I entitled to 3.000 euros?

Between October 26, 2022 and December 31, 2024, companies can pay their employees a so-called inflation compensation bonus of up to 3.000 euros, free of tax and social security contributions. Important: The inflation compensation premium is a voluntary benefit provided by the company, to which there is no legal entitlement. The payment must go beyond the obligation to pay. It is therefore not allowed to withhold bonus or Christmas bonus payments and pay an inflation compensation premium instead.

🚩 Personal to-do? None, because the companies arrange this payment.

5. What happens to my holiday entitlement if I have to go into quarantine?

Basically, if you fall ill while on vacation, the days on which vacation and illness coincide will not be counted towards your annual vacation. Does this also apply if employees did not fall ill during the vacation period but were in an ordered quarantine? In general, the BAG seems to be sticking to its previous case law, which rejects impairments of vacation time that are not caused by illness. For possible cases up to September 16.09.2022, XNUMX, this would mean that the holiday entitlement would be lost with a quarantine.

For cases since September 17.9.2022, XNUMX, it is clear that quarantine days will not be deducted from vacation.

🚩 Personal to-do? In the event of a quarantine, this must be reported to the employer so that the vacation days do not expire.

6. Evidence Act: What information belongs in my employment contract?

The new Verification Act of August 1, 2022 expands and supplements the catalog of contractual conditions to be verified. The aim of the law is that employees receive written information about all essential content of the employment relationship. Among others, the following points are added:

End date or duration of a fixed-term employment relationship
duration of the probationary period
Composition and amount of wages including overtime pay

Also new are information requirements on the dismissal protection procedure. In addition to the procedure to be followed, they also include:

notice periods
Deadline for bringing an action for protection against unfair dismissal
Reference to the written form requirement

What is also new is that different deadlines are set for the provision of the individual proof content and violations of the law can be punished with a fine.

🚩 Personal to-do? Read contracts and ask for changes if necessary.

7. Whistleblower Protection Act: How are whistleblowers protected?

On December 16, 2022, the Bundestag passed the Whistleblower Protection Act. As soon as the Federal Council has approved the law, it will probably come into force in spring 2023. The basis for the regulation is the EU Whistleblower Directive, i.e. the protection of those people who perceive and report grievances in their own company. The aim of the Whistleblower Protection Act is to enable anonymous reports in companies with more than 50 employees without the whistleblower having to reckon with disadvantages. Companies with fewer than 50 employees are not affected by the Whistleblower Protection Act.

In order to fulfill the purpose of the law, there will be a reversal of the burden of proof. This means that if employers take adverse measures against whistleblowers, they must prove that they were not taken because of the information provided, but for another reason.

🚩 Personal to-do? None, employers have a duty here.

8. Supply Chain Due Diligence Act: What do companies need to know about their suppliers?

The Supply Chain Due Diligence Act came into force at the beginning of the year. This obliges companies based in Germany to check and document all direct suppliers for compliance with human rights and environmental due diligence. Violations are subject to sanctions and fines. The law initially applies to large companies with at least 3.000 employees. From January 1, 2024, companies with at least 1.000 employees will be affected.

🚩 Personal to-do? None, it is one of the company's tasks to set up appropriate systems for recording.

Default of Acceptance and Termination

Posted on 20 January 20235 October 2023 by Leonard Bona

Positive development for employers and at the same time a "trap" for employees?

According to the latest figures from the Federal Statistical Office, which refer to the year 2020, around two thirds of labor court disputes end in a settlement. There are usually good reasons for this: Many employees defend themselves against dismissal by filing a lawsuit for protection against unfair dismissal. The procedure can take a long time, resulting in higher costs, the pending procedure impairs the planning security of the parties and the relationship of trust is often very tense. A stressful situation for both parties.

Default of acceptance – risk for the employer

But for the employer in particular, the lawsuit for protection against unfair dismissal entails financial risks. On the one hand, there is protection against dismissal for employees, which takes into account employees' need for social protection and sets high requirements for the effectiveness of a dismissal. On the other hand, there is the threat of “default acceptance wages”: By giving notice, the employer expresses that it will no longer accept the employee’s work after the notice period has expired. If the labor court determines that the termination was ineffective, the employment relationship continues and the employee can assert a claim for additional payment of remuneration for the period after the termination period has expired until the court has made a decision, even though he has not worked. Depending on the length of the procedure, this can extend to several monthly or even annual salaries. But is the salary entitlement always and in full?

employee's obligation to account

No! The threat of delayed acceptance of wages amounting to several months' salary, the avoidance of which motivates many employers to be willing to make comparisons, including high severance payments, has its limits. The employee must be credited for what he has earned through other work or could have earned through other work. Social benefits are also taken into account. But how does the employer find out whether anything is to be credited at all?

Employer's right to information

The Federal Labor Court (BAG) already strengthened the rights of employers in its decision of May 27, 2020 (Az.: 5 AZR 387/19). Here the employee was obliged to inform the employer about the job offers of the employment agency and about his efforts to find a new job. The employer has no other way of legally obtaining information about the employee's obligation to offset and the amount to be offset. That is why the right to information is justified, according to the BAG.

Applications as a "full-time job"

A recent and remarkable decision by the Berlin-Brandenburg State Labor Court (LAG) of September 30, 2022 (Az.: 20 Ca 3918/20) goes even further. Here, too, the employer was able to assert its right to information and found that the employee had received numerous reasonable placement offers from the employment agency, but had not applied or had only insufficiently applied.

The LAG determined that the employee was unemployed during the dismissal protection process and was therefore obliged to make an effort to apply that “corresponds to the time required for a full-time position”. He even has to follow up with potential employers if he has not received an answer to his application. The court dealt extensively with the quality and seriousness of the employee's applications, which it also assessed as insufficient. For these reasons, the court denied the employee any default wages.

Conclusion

It is an open question whether employees who have been dismissed – to put it bluntly – have to spend 40 hours a week trying to apply for a job. Many employees hope for a successful dismissal protection process and have by no means finished with their old job. The opinion of the LAG Berlin-Brandenburg goes very far and it remains to be seen whether the principles set out to the detriment of the employees will be shared by other courts. Nevertheless, in the future employees cannot rely on receiving the full amount of default wages after a successful dismissal protection process, but should carefully examine their other career prospects and consider taking up a reasonable job. The recent development of case law is undoubtedly welcomed from an employers' point of view. The decisions of the BAG and the LAG Berlin-Brandenburg must always be taken into account when deciding how to proceed within the framework of a dismissal protection procedure. This applies equally to employers and employees.

Electronic certificate of incapacity for work

Posted on 16 January 2023September 29, 2023 by Jens Niehl

ZDF Volle Kanne Talk with Jens Niehl from January 09, 2023

Month: January 2023