international employment law firm alliance L&E Global

Germany: No invalidity of a claims forfeiture clause in an employment agreement due to a violation of the indispensability of the minimum wage if agreed before the German Minimum Wage Act came into force

The plaintiff was employed by the defendant as Business Development Manager. The employment agreement included a forfeiture clause under which all mutual claims arising from the employment relationship and those connected with the employment relationship are deemed forfeited if they are not asserted against the other party within three months after the due date.

After termination of the employment relationship on 31 May 2016, the plaintiff first claimed expenses out of court on 29 September 2016 and then with the action, which was filed with the labour court on 11 September 2017. The action was unsuccessful before the labour court.

The Labour Court of Hamburg ruled that all claims arising from the employment relationship have been forfeited due to the forfeiture clause in the employment agreement. According to the employment agreement, the expenses had to be claimed in writing at the latest three months after their due date. The plaintiff did not meet this three-month deadline, because his claims for expenses were due on the termination date. An extrajudicial assertion should therefore have been made by 31 August 2016. However, it did not take place until 29 September 2016.

The clause does not unreasonably disadvantage the plaintiff against good faith. In particular, the provision is not invalid due to the violation of the German Minimum Wage Act, because the periods before and after the German Minimum Wage Act came into force need to be distinguished. Exclusion periods in employment agreements concluded after the entry into force of the German Minimum Wage Act are invalid unless they expressly exclude the right to the minimum wage. However, due to the protection of legitimate expectations, an exclusion period agreed before 1 January 2015 is also effective for claims that arose and became due after 1 January 2015, at least to the extent exceeding the statutory minimum wage.