Employment law is a complex field in which some myths persist. We dispel misconceptions and show what really applies to important issues such as vacation entitlement, dismissal and severance pay.
1. severance pay: no automatism
Not every employee is entitled to severance pay in the event of dismissal. This is a voluntary payment by the employer. A severance payment can be agreed in a social plan, employment contract, collective bargaining agreement or termination agreement - or result from a settlement before the labor court.
A special feature applies to dismissals for operational reasons: If the employer indicates in the notice of termination that the dismissal is for operational reasons and the employee receives a severance payment if the three-week period for taking legal action expires, a claim arises. The amount of this severance pay is regulated by law and is generally 0.5 months' salary per year of employment.
2. vacation entitlement: not unlimited during parental leave
Many people believe that leave entitlement remains unrestricted during maternity and parental leave. This is not quite true. During the maternity protection periods (six weeks before and eight weeks after the birth), the leave entitlement does indeed remain in place.
The situation is different during parental leave: Here, the employer has the right to reduce the annual leave entitlement by one twelfth for each full calendar month of parental leave. So if you take a year of parental leave, you may lose all of your leave for that year.
3. overtime: Overtime with rules
The employment contract sets out the framework conditions of the employment relationship - including working hours. If there is no provision on overtime, employers are not allowed to order it without further ado. Employees are therefore generally not obliged to work overtime.
The situation is different if a collective agreement or a company agreement provides for overtime. In this case, it may not exceed the limits set out in the Working Hours Act. This also includes compliance with rest breaks (at least 30 minutes for more than six hours of work) and rest periods (at least eleven hours between shifts). General formulations stating that all overtime is compensated with the monthly salary are also inadmissible. Overtime must be compensated either via salary or time off in lieu. In addition, working on Sundays and public holidays is generally prohibited, with exceptions for certain sectors. It is important to note that these regulations serve to protect the health and safety of employees and ensure an appropriate work-life balance.
4. termination: The right format and the right time
"I quit you!" - It's not that simple. A notice of termination must meet certain formal criteria in order to be effective. This includes the written form (Section 623 BGB), which has recently been made much easier. Although the traditional written form with a handwritten signature on paper is still valid, text form is now sufficient in most cases. This means that a termination by email, text message or messenger services can be effective.
Exceptions:
- The stricter written form with a handwritten signature continues to apply for sectors that are subject to the Act to Combat Clandestine Employment (e.g. construction industry, catering industry).
- Fixed-term employment contracts: The stricter written form with a handwritten signature continues to apply to fixed-term employment contracts (Section 14 (4) TzBfG).
5. job interview: The truth and nothing but the truth?
Everyone wants to shine in a job interview. That's why people like to tell little white lies to put themselves in the right light. But be careful: you need to be honest when asked about job-related requirements such as experience, knowledge and availability.
The situation is different for personal questions such as family planning, pregnancy, religion or sexual orientation. These are inadmissible and may therefore be answered incorrectly.
The employer may only ask about previous convictions if they are relevant to the job. Only criminal convictions that are currently entered in the Federal Central Criminal Register are considered criminal convictions.
If it comes to light after you have been hired that you have lied about permissible questions, you risk being dismissed.
Conclusion:
Employment law is complex and full of pitfalls. To avoid unpleasant surprises, employees and employers should inform themselves well. If in doubt, it is advisable to seek legal advice from a specialist employment lawyer. We also offer advice in English.
