Labor Legalities

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  • Labor Legalities

    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.

    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.

    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. 

    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.
    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.
    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.
    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.
    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.

    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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