Labor Law

If you are the kind of person who likes to look things up, beware. There is no Labor Code in Germany. Instead, employment is regulated in a bulk of statutes, collective agreements ,and standard company agreements. Case law and academic opinions, so called “ruling opinions or ruling case law ('herrschende Meinung' or 'ständige Rechtsprechung')”, play a vital role here. If you have been fired, it is a great help to contact a lawyer if you want a severance payment. But again, remember that you have to pay the lawyer yourself, no matter who wins – in the first instance. Your legal insurance will usually cover the costs for this dispute.

Quick Links:

1.) Work Permit
2.) Children
3.) Students, Interns, Refugees
4.) Vacation
5.) Maternity Leave
6.) Works Council
7.) Miscellaneous

1.) Work Permit

Knowing that politicians keep all their promises, I vaguely remember something of a “one-stop agency”? Has this come true or is it only another hoax?

I am so sorry to disappoint your distrust in politicians but this one-stop agency has come true. The idea behind this concept is to reply to the criticism of the extraordinary red tape having to first visit the foreigner’s authority for a residence permit and then the labor agency for a work permit. Now every residency permit must explicitly regulate if or if not you are entitled to work in Germany (§4 II 2 AufenthG). This means that for your work permission you will simultaneously apply with your residence permit at the foreigners office. However, the labor agency still decides. The foreigners office only executes the labor agency’s decision. In the very end, you are relieved of visiting one more office. However, the administrative work has not been changed.
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I want to get a job in Germany. My training at home gives me a grand qualification. What is the likeliness of an approval?

Generally, you will receive a work permit if the government thinks it is safe for the labor market (§39 AufenthG). Your application will be granted if:

your employment does not result in any adverse consequences for the labor market, in particular with regard to the employment structure, the regions and the branches of the economy, and
no German or privileged foreigners will lose their vocation or
you are not employed on terms less favorable than applicable to comparable German workers.
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Aha. And who are these privileged persons? Surely me, because I’m so cute.

Nice joke, I got a lot of laughs. The privileged foreigners are, that have a settlement permission, or

are EU citizens, or
are from Switzerland.
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I followed my relative to Germany and was granted residence in Germany. What about working? Will I be able to work?

Yes, you will be able to work in Germany insofar as your relative is allowed to work in Germany or if marital cohabitation has lawfully existed in the Federal territory for at least two years.
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What about being married to a German? Will they allow me to work or do I have to fulfill the normal requirements, like a waiting period?

Being married to a German gives you the right to work as soon as you receive your residence permit. The law says that you must receive a work permit if you habitually live with your German spouse in Germany.
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What about me being the parent of my German kid?

The same goes for you – as long as your child normally lives in Germany and you want to raise and/or actively participate in raising him here.
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Having followed my spouse to Germany, who has a well-paid job, we are thinking about splitting up. How will this effect my own work permit?

Supposing you have split, your permission to reside will be prolonged – granting you an independent status from your “worse” half for one year if your cohabitation has legally endured in Germany for at least two years and your ex’s permit has not expired (§31 I no. 1 AufenthG). You will be allowed to work.
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2.) Children

My kid is bugging me to raise his allowance. He’s becoming too expensive. I believe he should start earning some of his own money. May kids work in Germany?

This question can be answered with very clear “yes” and a very clear “no”. Generally, they are allowed to work if you permit. Only, the type of work is restricted. Your child may not work nightshifts, on assembly-lines, on weekends or do hazardous work. Depending on the child’s age, the time to work is limited too. Working age starts at 13. Of course, nobody will complain about a five-year old “bartender” rinsing glasses on a church bazaar – naturally, under the supervision of an adult.
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Overview of Permitted Work in Relation to Child’s Age

Age	Time	Amount
13 – 15	neither before school nor after 6 pm	2 hrs/daily
15 – 18	between 8 p.m. and 6 a.m. and only exceptionally working	max. 8 hrs/daily and 40 hrs/week
18 – death	no restrictions under rules for protection of children

Can I correctly suppose that my offspring will not have to pay any taxes?

You are generally wrong. Children have to pay taxes just as adults do. Therefore, it can be an advantage to let the child “own” shares or savings books. Your little one will have to pay taxes on his taxable income and use tax free limits. Subject to taxation is income minus income-related expenses and extra-ordinary expenses. N.B. Professional help is strongly recommend before shifting your income or funds to children because mistakes can be very costly!
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Does this have any effect on subsidies and grants for children (Kindergeld)?

Only if your child earns so much that it has to pay taxes on its income. This would be for 2006 € 5,250. This amount varies and usually increases annually.
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3.) Students, Interns, Refugees

While studying here, I would like to fatten my wallet. How much may I work?

You may take up a job for either 90 full days or 180 half days a year or a part-time job suitable for students. Do not pick up more work because this will torpedo your status and your residence will become illegal.
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My studies require me to complete an internship during the program. I just found a place where they will even pay me. Is there anything special I have to be aware of?

Congratulations to your extra money. As a student, you have a special status with regard to social security. In this case, your internship is required for your studies, your employer will not need to take any social security premiums from your salary. The amount of salary is unimportant with respect to social security.
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I want to get a whiff of how practice will be when I finished my studies even though the internship is not required. And, it would at least help me understand more and improve my job chances afterwards. The company hiring me is willing to pay me EUR 500 per month. Do I have to pay social security on that?

Yes, you will. You and your boss will equally share the social security costs.
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What about my internship prior to my enrollment at the university? Will I also be exempt for that time?

Internships, prior or post your university education, are generally subject to social security payments. However, if you are only earning up to € 400 – a salary up to low-income limit – only your company will be paying these premiums. However, if that internship is not required for your studies, then you will not be exempt from statutory health and old-age insurance.
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I just managed to get an internship at the company where I want to end after finishing studies. What about social security? Am I exempt? I just want to learn a bit and make some contacts during my studies. It is not a compulsory internship.

I am happy for you that you found a promising internship. You will be exempt from social security premiums if your “salary” is not more than € 400 or if it is a short-time “mini-job”. If you earn more than € 400 then your income will be subject to social security according to the normal rules.
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May I, as an acknowledged refugee, work in Germany?

Yes, you may, but only following the general rules for work permits. You will need a “sponsor” to give you a job and no privileged person must want your position. This differs from the former law.
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4.) Vacation

How much vacation am I entitled to?

§3 I BUrlG entitles you to a minimum of 24 business days for vacation, calculated on the basis of 6 business days per week. If the weekly number of working days is below 6, then the number of vacation days will be reduced accordingly. For example, if you work 5 days per week, you will be entitled to 20 days of paid vacation annually. But national or regional holidays on a normal working day do not count as vacation. However, your contract might grant you more. Most of the collective labor agreements require the employer to grant more. When negotiating an employment contract, even executives should not hesitate to claim 28 to 30 days for vacation.
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I, a new employee, have been working now for six months and started to work in July. Now in February, I want to take my whole vacation for last year’s and this year’s all at once. I am entitled to 25 days. Please confirm that I can have leave for 50 days.

Nice try, but no chance. You are in so far correct that you are entitled to your full vacation time after being in the company for at least a half-year. But this half-year is also to be in the same year. You are only entitled to 1/12 per employed month of your vacation time. So, in your case you will be entitled to half of that year’s vacation or 13,5 days. .........
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My boss is now picking at me as the new employee because I want to make up last year’s vacation. I just applied this year.

Sorry. You forfeited last year’s vacation by not expressly announcing that you wanted to take it the following year. Be aware, this is only the general rule. Your contract, standard company agreements or tariff overrules this general rule.
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5.) Maternity Leave

I’m expecting to give birth to my child in two months. I can’t sit at the desk anymore. My hands hardly hit the keyboards with my stomach. Work has become a real pain form me. Do I still have to work? Can’t I go on maternity leave?

Sorry for your difficulties. You cannot go on maternity leave – yet. This starts just six weeks prior to the expected date of birth as testified by a physician. If you are able, you could still work and only until you believe you can no longer manage it (§§3 II, 5 II MuSchG). Supposing you really cannot work anymore, contact your physician to go on sick leave.
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When may I start working again? I just hate being at home all day.

The law forbids the employer to let a mother work until after the eight weeks following birth have passed. If you gave birth prematurely this period is extended up to 12 weeks.
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Do I have any special rights as a mother?

Oh yes you do. You have a lot of special rights to preserve the health and life of you and your child (§4 MuSchG). You are not allowed to

do hard physical work,
have exposure to radiation, gases, steams, heat, cold, wetness or other hazardous things,
regularly carry things weighing 5 kg or occasionally carry things of 10 kg without mechanical aid,
constantly work standing after the fifth month of pregnancy,
be exposed to hazardous activities.
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6.) Works Council

Happily, I just picked up a job in a large corporation. While reading the papers, I stumbled over “Betriebsrat”, works council. When are they required? What is their business?

Betriebsverfassungsgesetz or Works Council Constitution Act rules in §1 that every company with at least five standing employees is to establish a works council. Members of the works council are elected for four years and elections for new members have to take place during the months of March and May. These councils

can and have to fend off declines in the situation for employees.
can do something in the cases of admonishments, notices, etc. for the workforce.
decide with the management on groupings, classifications, payment of salaries or surpluses.
have also to monitor that the law, rules on preventing accidents, tariffs and company’s standard agreements are obeyed.
can apply to management for measures of advantage for staff.
have also the task to monitor the interests of those needing special attention, e.g. disabled, youth, elderly persons, foreigners.
can determine working time with management.
can co-determine vacation plans of the employees.
have especially to enforce the equality between men and women: engagements, employment, vocational training, and enhance career improvements.
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Who qualifies as an employee?

Generally all employees must have an employment contract with the company – including apprentices. There are many exceptions however. They are

members of the management or shareholders of the company or corporation,
persons whose employment is primarily not orientated in achieving an income but has more charitable, healing, religious or moral educational purposes,
spouses and relatives in first degree living in one household with the employer,
persons having legal capacity to represent the company.
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How many members does a working council have?

Usually a works council has for

5	to	20	employees shall have 1 representative
21	to	50	employees shall have 3 representatives
51	to	100	employees shall have 5 representatives
101	to	200	employees shall have 7 representatives
201	to	400	employees shall have 9 representatives
401	to	700	employees shall have 11 representatives
701	to	1,000	employees shall have 13 representatives
1001	to	1,500	employees shall have 15 representatives
1501	to	2,000	employees shall have 17 representatives
2001	to	2,500	employees shall have 19 representatives
2501	to	3,000	employees shall have 21 representatives
3001	to	3,500	employees shall have 23 representatives
3501	to	4,000	employees shall have 25 representatives
4001	to	4,500	employees shall have 27 representatives
4501	to	5,000	employees shall have 29 representatives
5001	to	6,000	employees shall have 31 representatives
6001	to	7,000	employees shall have 33 representatives
7001	to	9,000	employees shall have 35 representatives

7.) Miscellaneous

My boss asked me for my working papers. What exactly are working papers in Germany?

Your boss wants to have:

your tax card,
copy of your passport showing your current work and residence permit,
social security card (Sozialversicherungsausweis),
copy of your “membership” in a health insurance program (Mitgliedsbescheinigung einer Krankenkasse),
résumé,
any forms provided by the company.
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I just received an appointment for an interview for a new job. Well, it turned out to be a nightmare. The employer was asking me extremely personal questions. He asked if I were pregnant, how many children we are planning to have, how long my child’s break will be, etc. etc. Come on, is all this really his business??

Generally, you as the applicant are obligated to tell the truth – and nothing but it. However, your future boss has no right to inquire about your personal life – only your professional life. So, even if you are visibly expecting you may lie and may not be sued or punished for deceit. Forbidden questions also concern:

denomination (exceptions possible),
family planning,
hobbies,
penalties,
sexual orientation.
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So, is there a general rule what an employer may or may not ask?

Yes, there is. The employer is entitled to inform himself objectively and directly to employment related questions. Only exceptionally, are questions concerning private matters permitted. Grounds for inquiring private matters can be e.g. found in the “special purpose of the company”. If a church wishes to employ somebody, they may ask if the applicant is living in non-marital relationship. Previous convictions may be inquired about if they are vital for that job (Federal Labor Court, judgment of May 20, 1999 - 2 AZR 320/98). This will typically be the case when it comes to handling money or dealing with business secrets.
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Having just become pregnant, I so dearly want a job, and am willing to lie to the interviewer just to get it. Will I really be not subject to firing?

No, you cannot be fired – as long as you are on maternity leave. But do not believe that after returning to work your boss will be very amused! Why? Because your boss wanted to employ someone who will work for him (and not immediately go on maternity leave). This employer will be paying for someone who has not contributed a penny’s worth of work to the company. As soon as he finds this out, reckon that he will seek a possibility to fire you! He will feel that you “betrayed” him.
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What do I generally have to know about working contracts?

Your employment contract is the first and main key in determining your rights and duties to your employer. Therefore, make sure that you have all vital issues addressed in the contract. If you later find out that something is missing, that might be too late, because the employer might not want to alter the contract. Supposing your bad luck continues and the contract contains a stipulation on “no oral agreements besides this contract”, then no 100 witness will be able to prove the contrary.
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After I ate lunch in the kitchen of our office, I gracefully tossed a vase off the counter. It fell on the floor and broke. Just as I expected, my boss said that he demands a new one. He expects me to go out and get if after work. Can that be? I thought my boss carries all liability in his office.

Yes! During your private time in the office (lunch break), you negligently destroyed his property. This offense entitles your boss to damages. He is totally correct in demanding you to get a new one off hours. Though you are generally right in that your boss can be held liable for infringing obligations or damaging other persons or their property.
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When are employees liable for damages they make?

Your liability will be limited in accordance with the so-called “in-plant compensation principles”. Following those principles, the employer will have to bear a portion of the damages himself, because the “general operational risks” of the business are treated as contributory negligence. As a rule of thumb, your liability will be

100% in cases of intention or gross negligence,
50% in cases of average negligence and
0% in cases of light negligence.
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Could you name me some exceptions?

The most common exceptions are:

Certain risks are exempt to be covered by insurance. If they are your liability, you will be limited to the amount customarily retained by the insurance company.
If your activity is particularly risky, this will reduce your liability vis-à-vis your employer.
If you are operating very expensive machinery, it cannot be expected of you to cover all damages.
It is not sufficient that your intent relates to the fact that you breached your contract. The intent must extend to the damage of your cause (judgment of Federal Labor Court of April 18, 2002 - 8 AZR 348/01).
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Authors: AvE / FS