Labor law encompasses all regulations, ordinances, and laws that affect employment. It consists of individual labor law and collective labor law. Individual labor law regulates the relationship between employee and employer. Collective labor law concerns the legal relationships of collectives, such as employer associations and unions. On this page, I will focus on individual labor law. If you have questions about your rights and obligations as an employer, I would like to provide you with an overview to optimally prepare you.
The employer's rights and obligations are primarily governed by the employment contract with the employee. This contract stipulates the remuneration to be paid and the work to be performed. Since the exact performance is difficult to determine in everyday work, it is only roughly outlined in the contract. According to the Trade Regulation Act (GewO), the employer has the right to issue instructions, which allows them to specify the exact content, execution, time, and location of the work. However, these instructions may not go beyond what is agreed upon in the contract.
The employer is therefore authorized to give instructions, while the employee is subject to them. In return, the employer is obligated to pay the agreed remuneration. Due to the freedom of contract, the contracting parties can, in principle, freely negotiate the employment relationship. The employment contract usually contains additional clauses regarding Working hours, probationary period, fixed-term employment, vacation, confidentiality, or secondary employment. Elements not contractually agreed upon are governed by law, in particular the German Civil Code (BGB).
However, there are also mandatory legal provisions that cannot be modified by an employment contract. This limits the aforementioned freedom of contract. If contractual clauses are to the detriment of the employee, they are invalid. An employer cannot enforce unlawful clauses, whether intentionally or unintentionally, even if they are defined in the contract. These include, in particular, provisions in the following areas:
In addition, regulations (particularly those concerning occupational health and safety) and EU directives apply. Labor law does not apply to public sector employees such as civil servants, soldiers, and professional judges.
The employment contract can be concluded verbally, but according to the Evidence Act (NachwG), the employer is obliged to provide the employee with a written copy.
Are you planning to hire employees and need help drafting contracts? Are you unclear about your responsibilities as an employer?
Do you have any questions about deadlines or extraordinary termination?
The termination of an employment relationship can take the form of a dismissal, for example, upon reaching the end of a fixed-term contract or through a termination agreement. There are two types of dismissals: ordinary dismissals and extraordinary dismissals. It is important to consider whether general dismissal protection applies.
In the case of ordinary terminations, the notice periods must be observed. This means that the termination has already been issued, but the employment relationship continues until the expiration of the notice period. Unlike employees, employers' notice periods increase with the employee's length of service. While an employee with up to two years of service is entitled to a notice period of one month, a notice period of four months must be served after 10 years of service, and a maximum of seven months after 20 years.
There is also the option of termination without notice, which terminates the employment relationship without notice. Termination without notice is only permissible if there is a compelling reason and the continuation of the employment relationship is unreasonable. Such a reason could include, for example, sexual harassment, violence, bullying, or repeated late payment of wages by the employer.
Are you planning to terminate one of your employees? Are you unsure about the protection against dismissal in your company? Do you need information about terminations and termination agreements?
In addition to adhering to the notice period, the employer must also comply with dismissal protection laws. Dismissals based on immoral, discriminatory, or repressive motives are generally prohibited. Before issuing a notice of dismissal, the employer must, if necessary, inform the existing works council and, if necessary, obtain its consent or consult it.
In addition, the German Dismissal Protection Act (KSchG) stipulates specific requirements for a valid dismissal. Employers must comply with these requirements if the employee has been employed for more than six months and the company has more than ten employees (for a workforce employed before 2004, the limit is five employees).
When determining the number of employees, the following key applies to part-time employees and trainees:
The decisive factor is the length of service, which is determined individually even in larger companies, provided that the company represents an independent unit within the company, particularly with regard to personnel matters.
If general protection against dismissal applies, the employer must provide reasons for the ordinary dismissal. There are behavioral, operational, and personal reasons for dismissal:
In addition, employees in special circumstances enjoy special protection against dismissal, such as pregnant women, employees on care, family care, or parental leave, people with disabilities, works council members, data protection officers, those performing military service, or trainees. Ordinary dismissal of the employee is excluded in these situations.
Employees can defend themselves against dismissal by filing a wrongful termination suit. This suit must be filed with the relevant labor court within three weeks; otherwise, the reason for dismissal is automatically deemed justified.
Any legal action related to an employment relationship is heard before the labor courts. The Labor Court Act (ArbGG) governs this process. A labor court has the first instance decision, a state labor court has the last instance decision, and the Federal Labor Court in Erfurt has the last instance. The panel, i.e., the body that decides the case, consists of one full-time judge and one lay judge each for the employee and employer sides.
All relevant legal texts can be looked up online in the Federal Law Gazette or via dejure.org.
As a self-employed attorney, I have gained extensive experience in my previous professional positions and continue to further my education to provide my clients with expert representation. A basic understanding of employment law is essential to effectively support my clients.
It is important to note that the principle of favorability applies in labor law. Due to the structural dependence of the employee on the employer, the latter is considered particularly in need of protection. This can make provisions in an employment contract invalid if they conflict with higher-ranking rights arising from works agreements, collective bargaining agreements, or laws. However, this invalidity does not apply in the reverse direction; the employer must accept these provisions against itself. These potential disadvantages are what make labor law so complex for employers.
My expertise encompasses all aspects of employment law. Once you appoint me to handle your case, I will take care of it promptly. My services include, in particular:
A service contract is a contract under which a service is provided in return for payment. An employment contract, on the other hand, regulates the specific employment relationship. The employer has the right to determine the place and time of work.
The Trade Regulation Act (GewO) grants the employer the right to specify the precise details of the work broadly described in the employment contract. This includes specifying precise working hours or the location of work, provided this is consistent with the employment contract.
The provisions of the Dismissal Protection Act (KSchG) do not apply to companies with fewer than 10 employees. An exception also exists for companies that represent an independent organizational unit within a larger company, particularly in personnel matters.
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