Statutory provisions to be complied with
In case of long-term postings, the employer must comply with all statutory terms and conditions of employment, on top of those regulations that apply to any employment in Germany, with no more than the following exceptions:
- procedural and formal requirements and conditions concerning the conclusion or termination of employment, including post-contractual non-compete clauses, and
- regulations concerning supplementary occupational pensions.
Legal regulations or provisions in the following fields do not fall under the statutory terms and conditions of employment:
The Federal Ministry of Labour and Social Affairs is responsible for the content of this subject area. Enquiries regarding the content of this page will be answered by the minimum wage hotline under the contact details below:
Federal Ministry of Labour and Social Affairs
Minimum Wage Helpline:
Mondays to Thursdays: from 08.00 to 20.00 hours
Tel.: +49 30 60280028
E-mail: mindestlohn@buergerservice.bund.de
In particular, the following terms and conditions of employment must be observed:
Continued payment of wages on public holidays
If no work is performed on a day because it is a public holiday, the employer must pay his or her workers the same wages as if work had not been interrupted due to a public holiday (Paragraph 2 of the Continued Payment of Wages Act (Entgeltfortzahlungsgesetz - EntgFG)). Workers who are absent without notification on the day immediately before or after a public holiday are not entitled to remuneration for the respective holiday.
By contrast, a worker’s entitlement to remuneration in case of sickness is governed by the labour law of the country whose jurisdiction is applicable to the employment relationship in general. If a worker is on a temporary posting, this will generally be the law of the country from which the worker is posted and where he or she usually works.
Parental leave entitlements
Parental leave is a temporary leave of absence for parents who take care of their own children. Workers are entitled to a parental leave of up to 3 years. During this period, they are not required to work; however, if they do not work, they will also not receive a remuneration.
Workers are entitled to take parental leave up to the day on which their child turns three years of age. Part of the parental leave may also be taken in the period between the child’s 3rd and 8th birthday.
Parental leave entitlements are governed by Sections 15 through 17, as well as 20 and 21 of the Federal Parental Allowance And Parental Leave Act (Bundeselterngeld- und Elternzeitgesetz - BEEG).
Whether or not parents are entitled to parental allowance (“Elterngeld”) during the time in which they are not entitled to remuneration from their employer is not governed by the Posted Workers Act. Parental allowance is not paid by the employer; it is a benefit paid by the state. Entitlement to parental allowance is governed by Sections 1 through 14 BEEG.
Parents are generally only entitled to parental allowance if they fall under German social security law during the time of their posting. According to Article 12 (1) of Regulation (EC) 883/04, workers fall under the social security law of their country of origin if they are posted for a duration of up to 24 months. If a worker is posted for more than 24 months, the question is whether the social insurance institutions in the country of origin and in Germany have agreed to extend the scheme. As long as the worker continues to fall under the social security law of his or her country of origin, parental allowance claims in Germany will only be subordinate claims. To claim parental allowance, the worker must in any case have established a permanent residence in Germany. If all prerequisites are met and where applicable, the German state is then obliged to cover the differential between the parental allowance of the country of origin and the amount that would be payable in Germany (Article 68 (2) of Regulation (EC) 883/04).
Further information on parental leave entitlements are available under item 2 of the brochure Elterngeld, ElterngeldPlus und Elternzeit ("Parental Allowance, Parental Allowance Plus and Parental Leave").
Brochure "Parental Allowance, Parental Allowance Plus and Parental Leave" (in German)
Short-term absence from work, long-term care and family caregiver leave
According to the Caregiver Leave Act (Pflegezeitgesetz) and the Family Caregiver Leave Act (Familienpflegezeitgesetz), workers have different rights in situations where they provide care for close relatives.
Caregiver Leave Act (Pflegezeitgesetz - PflegeZG):
- Short-term absence from work:
According to the Caregiver Leave Act, in cases of an unexpected care situation arising at short notice, workers are entitled to stay home from work for up to ten working days in order to provide care for a close relative or organise the long-term care situation. - Caregiver Leave
Under certain conditions, workers who provide care for a close relative in need of long-term care or who accompany a close relative suffering from a progressing disease that requires palliative care and is associated with only a limited life expectancy of a few weeks or months, are entitled to caregiver leave according to the Caregiver Leave Act. This means that they will be released from their obligation to work while they provide care for said close relative. In cases of partial leave, workers and employers must agree in writing on the reduction and distribution of working hours.
Family Caregiver Leave Act (Familienpflegezeitgesetz - FPfZG):
- Family Caregiver Leave
In addition, if the other prerequisites for providing care to close relatives governed by the Family Caregiver Leave Act are met, workers are entitled to be partially released from their obligation to work if they provide care for a close relative in need of care in his or her home.
The Federal Office of Family and Civil Society Functions provides interest-free loans for the duration of any leave according to the Caregiver Leave Act or Family Caregiver Leave Act.
Further information to Caregiver Leave or Family Caregiver Leave (in German)
The most important elements of the entitlements according to the Caregiver Leave Act and the Family Caregiver Leave Act (in German)
The Caregiver Leave Act and the Family Caregiver Leave Act do not oblige the employer to pay a remuneration for the time during which the worker is on leave. Entitlements to a continued payment of wages may, however, arise from agreements or other legal provisions. For example, a worker may be entitled to the continued payment of wages according to Section 616 of the German Civil Code (Bürgerliches Gesetzbuch - BGB), unless the application of this provision has been excluded by way of an employment contract or collective agreement. This applies to situations in which a worker cannot fulfil his or her obligation to work for a relatively insignificant time period and through no fault of their own because they provide care for a close relative. “Close relative”, for this purpose, is generally defined in narrower terms than in the Caregiver Leave Act.
If workers do not receive a remuneration from their employer during their short-term absence from work, they may be entitled to a Carer’s Grant for up to ten working days (Section 44a (3) of the Social Code, Book XI), provided that the close relative in need of care is covered by the German long-term care insurance.
Liability of the worker within the employment relationship
It is only under certain circumstances that workers are liable towards their employers for damages they cause in the framework of their operational activities.
If and to what extent a worker is liable depends on the degree to which the worker is at fault.
Intent: If the worker has intentionally caused the damage, he or she is fully liable. Intent is only assumed if the worker intended to violate his or her obligations and wanted the damage to occur, or if he or she approvingly anticipated the possibility of damage. If the worker believed that no damage would occur, his or her behaviour shall merely be deemed grossly negligent.
Gross negligence: If the worker has caused a damage by gross negligence, he or she is generally fully liable for said damage.
Gross negligence is deemed to occur if the worker has acted with significant disregard for necessary diligence and acted in a way contrary to what would have been reasonably deemed common sense or intuition in the given situation. In order to determine gross negligence, attention is to be paid to whether the worker, in the light of his or her individual abilities, would have been able to determine and observe the objectively necessary degree of diligence. Examples for gross negligence are accidents under the influence of alcohol, driving without driving licence, significant speeding.
It is to be noted that the same act may be grossly negligent in relation to a third party, but not necessarily in relation to the employer.
According to jurisprudence, liability may be limited in cases of gross negligence, particularly if there is a considerable imbalance between the remuneration of the worker and the damage risk of the work he or she performs.
Average negligence: If a worker has acted with average negligence, damage liability shall be split between employer and worker based on principles of reasonableness and fairness, considering all circumstances, in particular with regard to the cause and the consequences of the damage.
Average negligence is deemed to occur if the worker has acted with disregard to the necessary degree of diligence and if it would have been possible to anticipate and avoid the damage if necessary diligence had been applied.
Minor negligence: If the worker has acted with minor negligence, liability for the damage generally rests with the employer alone.
Minor negligence is deemed to occur in cases of simple mistakes, such as accidentally picking up a wrong object, simple slips of the tongue, or other minor errors.
The above principles of limited liability in employment relationships generally also apply in cases of liability for shortage, i.e., if there is a difference between actual and nominal balance (for example of cash or stock).
Contractual agreements whereby the worker assumes liability for shortage are inadmissible unless they provide for adequate compensation, e.g., in the form of a cashier’s allowance or an adequately increased remuneration. The agreed liability must be limited to the sum total of the cashier’s allowance paid for the period in question.
The worker is generally liable without limitation towards persons who are not part of the employment relationship ("third parties"). However, the worker has a right of release from liability towards his or her employer, wherein the employer is obliged to keep the worker indemnified against damages claims made by third parties to the same extent that damage liability would have been allocated between the parties to the employment contract if the damaged party had been the employer instead of a third party.
Employer liability
If the employer culpably breaches his or her duties arising from the employment relationship, the worker may be entitled to damages (Sections 280 and following of the German Civil Code). A breach of duty is culpable if the employer has intentionally or negligently violated his or her duties. The employer is responsible for any fault of persons he or she used in order to perform his or her obligations towards the worker ("third parties" in accordance with Section 278 of the German Civil Code).
Under certain circumstances, a worker may be entitled to compensatory damages arising from delays if the employer is late in performing his or her obligation ("damages for delay"). This generally requires that the employer has been given a warning notice once the performance has become due. In certain cases specified in Section 286 (2) of the German Civil Code, an employer may be liable for damages caused by delay even without prior warning. One case that is of particular relevance for employment relationships is that in which a calendar date has been set for a given performance. This is the case if it is clear on what calendar day an obligation must be performed. An example of this is generally the employer’s obligation to pay remuneration. The date on which the remuneration is to be paid is generally laid down in the employment contract. In addition, the statutory minimum wage applicable in Germany must be paid at the latest on the last bank working day (Frankfurt/Main) of the month following the month in which the work was performed (Section 2 of the Minimum Wage Act). The applicable collective agreements to be observed according to Sections 3 and 13b of the Posted Workers Act also contain regulations concerning due dates.
Due date for payment in the applicable collective agreements
If an employer culpably injures the life, body, or health of a worker, the worker may be entitled to "liability in damages" (Section 823 of the German Civil Code) on top of his or her claims due to culpable violation of obligations under the employment contract. The same holds true if an employer uses a vicarious agent according to Section 831 of the German Civil Code to carry out a task, and if said vicarious agent unlawfully inflicts damage on a third party while carrying out said task.
Liability to compensate for damage resulting from a tort directed against the person may extend to the disadvantages the tort produces for the livelihood or advancement of the injured person, for example, if reduced worker in future will earn lower wages as a result of injury to body or health (Section 842 of the German Civil Code). Under certain circumstances, the injury which the employer has caused to the life (Section 844) or health (Section 842 of the German Civil Code) of the worker may also give rise to claims of third parties vis-à-vis the employer.
Part-time work
The Act on Part-Time Work and Fixed-Term Employment (Teilzeit- und Befristungsgesetz - TzBfG) contains general provisions on part-time work. The provisions concerning part-time work contained in this Act also apply to workers on long-term postings. Provisions on fixed-term employment contained in the Act on Part-Time Work and Fixed-Term Employment do not apply to workers on long-term postings.
For posted workers who work part-time, the most important elements of the Act on Part-Time Work and Fixed-Term Employment are the following:
- Unless there is an objective reason, part-time workers must not be treated less favourably than full-time workers because of the fact that they work part-time. Employers must pay a remuneration to part-time workers that corresponds at least to the share of work they perform in relation to full-time workers.
- Workers who benefit from the provisions of the Act on Part-Time Work and Fixed-Term Employment are protected against discrimination.
- Switching to part-time work is also possible for workers and employees in senior positions.
- Workers who have been working for an employer for more than six months may demand a reduction of their contractually agreed working hours. They must notify their employer in writing of their wish to work part-time three months in advance.
- If the legal requirements are met, workers are generally allowed to choose if they wish to apply for part-time work with (Section 9a TzBfG) or without (Section 8 TzBfG) temporal limitation. A worker is legally entitled to part-time work without temporal limitation if the employer regularly employs more than 15 persons, not counting trainees. If an employer regularly employs more than 45 persons, workers are additionally entitled to reduce their working hours only temporarily and, after the expiry of the agreed period of reduced working hours, to automatically return to the originally agreed working hours.
- The employer is generally obliged to agree to a worker’s request for part-time work and determine the distribution of working hours according to the worker’s preferences. Provisions exist to protect the employer against excessive burdens. Thus, the employer may cite operational reasons against the worker’s wish for part-time work, including significant disturbance of work organisation, workflows, operational safety and security, or disproportionally high costs for the employer. For temporary part-time work, there is also a "limit of reasonableness" that applies to employers who regularly employ 46 to 200 persons. These employers are only obliged to grant temporary part-time work to one per every 15 workers. The employer has the right to unilaterally change the distribution of working hours if the operational interest of the company significantly outweighs the worker’s interest in maintaining working hours as they are and if the employer has notified the worker of the change at least one month in advance.
- Part-time workers who wish to increase their working hours and who notify their employer of this wish in writing are to be preferred if a corresponding vacancy (part-time or full-time) occurs, barring conflicting urgent operational reasons or requests of other workers to increase or reduce their working hours. If the post is awarded to someone else, the employer is obliged to demonstrate and, if applicable, provide evidence that the post in question is not a "corresponding vacancy" in the sense of the law or that the worker is not equally qualified for the post.
- In general, the employer is obliged to discuss every worker’s wish to reduce, increase, or otherwise change their contractually agreed working hours. This obligation applies regardless of the number of working hours and the number of persons employed by an employer.
