Employment and Labor Law in Germany

Transcription

1 German Law Accessible Employment and Labor Law in Germany von Stefan Lingemann, Robert von Steinau-Steinrück, Anja Mengel 2nd edition Employment and Labor Law in Germany Lingemann / Steinau-Steinrück / Mengel wird vertrieben von beck-shop.de Thematische Gliederung: Praxisliteratur Verlag C.H. Beck München 2008 Verlag C.H. Beck im Internet: ISBN Inhaltsverzeichnis: Employment and Labor Law in Germany Lingemann / Steinau-Steinrück / Mengel

2 Revision Table of Contents Table of Contents Table of Contents K Part I: Overview A. Fundamentals... 1 I. History and Introduction... 1 II. Players Employees and Employers Works Councils Trade Unions Employers Associations... 3 III. Employment Agreement, Works Agreements, Collective Bargaining Agreements and other Legal Sources Legal Sources... 4 a) Employment Agreement... 4 b) Works Agreements... 4 c) Collective Bargaining Agreements... 4 d) Statutes... 4 e) Company Practice... 5 f) Directives by the Employer... 5 g) Equal Treatment... 5 h) Constitution... 6 i) European Law.. 6 j) International Law... 6 k) Case Law Order of Precedence... 7 a) Hierarchy... 7 b) Specificity... 7 c) Replacement... 7 d) Favorability... 7 IV. Social Security... 7 V. Tax Law... 8 VI. Conflict of laws... 8 B. Employment Law... 9 I. The General Equal Treatment Act Scope of Application Prohibition of Adverse Treatment Organizational Duties of the Employer Rights of the Employees Legal Consequences Consequences for Practice in the Workplace II. Conclusion of Employment Agreements Application a) Prohibition of Discrimination b) CV and References c) Interview What Questions Can Be Asked d) Employment Questionnaire... 14

3 X KTable of Contents e) Medical Examination f) Interview Costs 14 g) Participation of the Works Council Content of Employment Agreements a) Conclusion of the Agreement b) Limitation of Term c) Part-Time Contract d) Leasing of Employees e) Foreign Employees f) Prohibition of Discrimination Control of General Terms and Conditions a) Review of Subject Matter b) Specific Clauses Form Invalid Employment Agreements a) Minors b) Fraudulent Misrepresentation c) Error d) Lack of Residence or Work Permit III. Rights and Duties Duty to Work/Right to Work Remuneration a) Minimum Remuneration b) Bonus c) Stock Options. 23 d) Company Pension Plans e) Capital Formation Benefits Sick Pay Working Time Vacation Maternity Protection Parental Leave and Parental Benefits a) Maternity Protection b) Parental Leave and Parental Benefits Confidentiality Restrictive Covenant Data Protection a) Data Storage with the Consent of the Employee 30 b) Data Storage without the Consent of the Employee Liability Inventions IV. Codes of Conduct/Ethics Codes V. Termination of Employment Relationships General Points a) Declaration of Dismissal b) Form c) Delivery d) Dismissal by Authorized Representatives e) Dismissal Notice Periods f) Calculating the Notice Periods Consultation of the Works Council.. 34

4 Table of Contents KXI 3. General Protection Against Dismissal a) Conduct-Related Dismissals b) Dismissal for Person-Related Dismissals c) Dismissal for Operational Reasons d) Constructive Dismissal Ordinary Dismissal or Dismissal for Cause a) Good Cause b) Two-Week Period c) Resignation for Good Cause d) Employees Protected Due to Age e) Tactical Advice Special protection Against Dismissal a) Maternity Protection b) Parental Leave.. 42 c) Protection of Persons with Severe Disabilities d) Works Council Members and Other Officers under the Works Constitution Act e) Mass Layoffs Termination Agreement VI. Transfer of Business and Transformation Transfer of Business a) Introduction b) Prerequisites c) Passing of the Employment Relationships as a Legal Consequence d) Information Requirements and Right of the Employees to Object e) Distribution of Liability f) Impact on the Employee Representative Bodies.. 47 g) Continued Application of Collective Norms Transformations VII. Assignment to Foreign Countries Employment Law Issues Social Insurance Issues Tax Law Issues C. Labor Law I. Laws Governing Works Councils Works Councils a) Workplaces That Can Have Works Councils b) Election of the Works Council c) Election Committee d) Election and Costs e) Works Council Members f) Joint Works Council g) Group Works Council h) European Works Council i) Economic Committee j) Youth and Trainee Representation k) Spokespersons Committee for Managerial Employees l) Severly Disabled Employees Representation m) Other Representative Bodies... 56

5 XII KTable of Contents 2. Rights of Participation and Codetermination a) Information and Consultation Rights b) Codetermination Rights c) Exercising Codetermination Rights Works Agreements. 61 a) Typical Content 61 b) Conclusion c) Effectiveness d) Termination Disputes between Employer and Works Council a) Suits before a Labor Court b) Cease and Desist Claims c) Temporary Hirings and Transfers d) Conciliation Board e) Other Remedies Transfer of Business, Transformation and Restructuring II. Collective Bargaining Agreements Law Collective Bargaining Agreements.. 65 a) Typical Content 65 b) Conclusion c) Effect d) Termination Labor Disputes/Industrial Action a) Strike b) Conduct of the Strike c) Reaction of the Employer III. Corporate Codetermination D. Employee Protection Laws I. Laws Governing Working Hours II. Shop Closing Hours Act III. Maternity Protection Act IV. Federal Parental Allowance And Parental Leave Act V. Young Persons Protection in Employment Act VI. Laws Regarding Employees with Disabilities E. Social Insurance Laws I. Statutory Social Insurance Pension Insurance Unemployment Insurance Health Insurance Home and Institutional Care Insurance Employee Accident Insurance II. Social Insurance Obligations Total Social Insurance Contribution Freelance Workers and Self-Employed Personnel Pseudo-Independence... 80

6 Table of Contents KXIII III. Termination of Employment Relationships Blocking Periods and Suspension Periods for the Employee Employer s Duty to Reimburse Severance Pay F. Tax Laws. 82 I. Withholding Tax on Wages II. Special Issues Company Car Stock Options Severance Payment 84 G. Labor Court Proceedings 85 I. Courts II. Protection Against Dismissal Proceedings Out-of-Court Negotiations Three-Week Period for Filing Complaints Course of Dismissal Proceedings and Tactical Considerations Judicial Dissolution of Employment Relationships and Severance Pay Remuneration Claims and Default in Acceptance Right to Employment H. Managing Directors, Management Board Members I. Managing Directors of Limited Liability Companies Appointment of Managing Directors Removal of Managing Directors Service Contract Duties and Responsibilities of the Managing Directors a) Managing the Business of the Company b) Diligence c) Organisation Duties d) Duty to inform Shareholders e) Accounting f) Insolvency g) Raising and Maintenance of Capital h) Fiscal Obligations i) Social Security Obligations II. Management Board Members of Stock Corporations Appointment of Management Board Members Removal of Management Board Members Service Contract Duties and Responsibilities of the Management Board Member a) Not bound by Directives b) Diligence c) Organisation Duties d) Information Duties e) Accounting f) Insolvency g) Raising and Maintenance of Share Capital... 94

7 XIV KTable of Contents h) Fiscal Obligations i) Social Security.. 94 Part II: Statutory Material I. Civil Code (excerpts). 95 II. General Equal Treatment Act III. Part-Time and Limited Term Employment Act IV. Continuation of Remuneration Act V. Protection Against Unfair Dismissal Act VI. Federal Vacation Act VII. Act for the Improvement of Company Pension Plans VIII. Comercial Code (excerpts) IX. Treaty Establishing the European Community (excerpts) X. Works Constitution Act XI. Collective Bargaining Agreements Act 356 XII. Act on the Co-Determination of the Employees XIII. One-Third Participation Act XIV. Hours of Employment Act XV. Maternity Protection Act XVI. Federal Parental Benefit and Parental Leave Act XVI a. Federal Educational Allowance Act XVII. Social Security Code III XVIII. Social Security Code IV XIX. Social Security Code IX (excerpts) XX. Law Pertaining to Companies with Limited Liability (excerpts) XXI. Stock Corporation Act (excerpts) XXII. Labor Court Act (excerpts) XXIII. Act Regulating the Commercial Leasing of Employees (excerpts) XXIV. Law on Documenting Essential Applicable Conditions for an Employment Relationship (excerpts) Glossary of Key Words English/German Glossary of Key Words German/English