Minimum Working Conditions
The terms and conditions of employment (such as maximum working hours, minimum paid vacation and sick leave) are regulated by statutes, collective bargaining agreements and works council agreements. The individual employment agreement cannot deviate from these provisions to the detriment of the employee. The rights of employees who are only temporarily sent to work in Germany are generally determined by foreign employment law. However, to ensure fair competition and to protect the interests of employees, the Posted Workers Act stipulates that in certain business sectors – including, but not limited to the construction, commercial cleaning and mail service sectors – certain minimum working conditions must be observed, including:
- maximum work periods and minimum rest periods;
- minimum paid vacation entitlements;
- remuneration, including overtime (pursuant to the relevant collective bargaining agreement);
- regulations on health, safety and hygiene at work;
- maternity/parental leave and youth protection;
- non-discrimination provisions including prohibitions on gender discrimination;
- allowances or reimbursement for travel, accommodations and meal expenses for employees who are away from their place of residence due to business reasons; and
- conditions for hiring-out of employees, in particular by temporary employment agencies.
As a general rule, remuneration is determined by mutual agreement. The salary is set forth in the individual employment contract, either concretely or by reference to a collective bargaining agreement. Furthermore, the contractual freedom of the parties to determine the remuneration by mutual agreement, is limited by public policy. A salary of less than two thirds of the relevant usual wage is contrary to public policy and such an agreement is generally considered to be void.
a. Minimum Wage
A statutory minimum wage of 9.35 EUR per hour applies to all employees in all sectors of business. Employees under 18, trainees and interns are exempted from the regulation. Aside from the statutory minimum wage, there are special regulations and collective bargaining agreements within certain sectors, e.g. the construction sector. Most of these regulations contain a minimum wage above 9.35 EUR per hour.
However, the Vocational Training Act provides a statutory minimum salary of 515 EUR monthly in the first year of training. The statutory minimum salary will be subject to further annual increases, up to 620 EUR monthly in 2023. Additionally, the monthly minimum salary increases by 18 % in the second year of training, up to 40 % in the fourth year of training.
The current minimum wage of 9.35 EUR per hour will be subject to further increase within the next year. It is expected to increase to 9.50 EUR per hour from 1 January 2021.
b. Remuneration Transparency Act
To support gender equality regarding remuneration, the core of the Remuneration Transparency Act is an individual right to information on remuneration. This right is granted to all employees working in establishments with more than 200 employees.
There is, however, no right to be informed on a specific remuneration – only the average remuneration of a comparison group must be disclosed. This group comprises employees of the opposite sex who perform the same, or similar tasks, as the employee requesting the information. However, as no specific remuneration shall be disclosed, the claim can and must be denied if providing the information can lead to the salary of specified employees becoming known. This is assumed if the relevant comparison group consists of less than six persons.
An employee has the right to information on:
- the criteria of how his/her remuneration is determined and/or –
- the criteria of how the comparable remuneration is determined and/or –
- the comparable average remuneration calculated by the statistical median of the monthly average remunerations, granted to employees in the same or a comparable position.
If the employer is bound by collective bargaining agreements, the reference to such agreements is sufficient for fulfilling the information claim. The information can be provided by the works council, the employer, or the parties of a collective bargaining agreement. If the employer does not comply with the employee’s claim, no direct consequences are provided in the law. If the employee then, however, claims discrimination, the failure to inform will lead to a reversal of the burden of proof. The employer then has to prove that no discrimination took place. Employers remain free to pay employees differently, as long as this is based on objective reasons, such as qualifications, market value, or responsibilities.
In May 2020, the highest labour court in Germany ruled that freelancers may also have the right to information on remuneration, if the freelancer qualifies as an employee under directive 2006/54/EG, in accordance with aspects of equal treatment. Whether this is the case, must be assessed on the basis of the circumstances of each individual situation.
Maximum Working Week
The statutory maximum working time is 8 hours per day from Monday to Saturday. Working on Sundays and public holidays is generally forbidden, unless explicitly permitted by statutory law. The statutory maximum weekly working time is 48 hours. The regular daily working time may be extended up to 10 hours, provided that on average 8 hours per working day are not exceeded within a reference period of 6 months or 24 weeks. An uninterrupted rest period of 11 hours after daily work must be guaranteed. There are no opting-out provisions under German law.
Overtime pay and overtime surcharges are not expressively regulated by law, but are subject to the employment agreement, collective bargaining agreements or works council agreements. For regular employees, it is not possible to deem any overtime compensated by the regular remuneration. However, it is possible to contractually agree that overtime of 10 – 20 % of the regular working time shall be deemed as compensated by the regular remuneration. For board members and managing directors, any overtime worked is generally considered to be covered by their normal salary.
Employer’s Obligation to Provide a Healthy and Safe Workplace
During the Covid-19 pandemic, employers need to pay special attention to maintain a healthy and safe workplace as the recommendations from the authorities are subject to change. For example, new regulations (announced in April and September 2020) are intended to ensure the safety of all employees in the workplace during the pandemic and to minimise the spread of the virus. The regulations are only recommendations and therefore they are not legally binding. Nevertheless, the employer is obliged under public law to comply with occupational health and safety regulations and has a duty of protection and care towards his employees.
Employees are entitled to make suggestions to the employer regarding all matters of safety and health protection. In the event that an employer does not meet its obligations, employees are entitled to lodge a complaint. If the employer does not respond to the complaint appropriately, the employees can lodge a complaint outside the establishment (e. g. to the authority for work safety). However, this is intended as an absolute last resort.
If the employer does not fulfill the rules of occupational safety, the employees are entitled to refuse to work at the workplace without losing their claim to remuneration. Furthermore, the employee is entitled to demand that health and safety regulations are observed and may claim compensation for any damages. Also, the works council and the German administrative authorities may insist on the fulfillment of applicable health and safety regulations. This applies in particular, during the Covid-19 pandemic.
Protection from Retaliation
The employee must not suffer any disadvantage as a result of lodging a complaint. This applies as long as there was a reasonable indication that a breach of the employer’s obligation to provide a healthy and safe workplace has occurred. However, if the employee lodges a complaint to the authorities without giving the employer a reasonable opportunity to correct the lack of safety, a dismissal can be justified.