New information obligations for employers
The law transposing this directive, which is expected to come into force on 1 August 2022 (approval by the Bundesrat is still pending), will lead to far-reaching changes to German labour laws. In the meantime, it is also largely clear what employers will have to face in concrete terms. In particular, the following information obligations are, in our experience, not completely fulfilled by almost any employer, which can at least lead to a risk of fines.
1. What do the changes mean for employers in detail?
1.1 Employees who take up employment on or after 1 August 2022 must be informed in writing of their essential contractual conditions when they start their work. These essential contractual conditions go far beyond the previous information obligations under the Act on notification of conditions governing an employment relationship (Nachweisgesetz - NachwG) in its previous version and include, among others:
(1) the composition and the amount of remuneration, including remuneration for overtime, bonuses, allowances, premiums and special payments as well as other components of remuneration. These shall be stated separately with their respective due dates and the method of payment (cash or non-cash),
(2) the working time, agreed rest breaks and rest periods,
(3) in the case of agreed shift work, the shift system, shift rhythm and prerequisites for shift changes,
(4) in the case of work on call, the number of minimum hours to be remunerated, the period within which the work is to be "called off" and the time frame set for the performance of the work by designating reference days and reference hours,
(5) Reference to the possibility of ordering overtime and its conditions (if agreed),
(6) the procedure to be followed by both parties when terminating the employment relationship: at least the written form requirement and the time limits for terminating the employment relationship as well as the time limit for bringing an action for protection against dismissal,
(7) the duration of the probationary period (if agreed),
(8) extended information obligations in connection with a stay abroad in posting cases,
(9) Name and address of the pension provider in the case of an occupational pension commitment,
(10) any entitlement to training provided by the employer.
1.2 Employees who were already working before 1 August 2022 do not have to be informed without further ado, but only upon request.
2. How and in what form must the information be provided? What happens in case of non-compliance?
2.1 The NachwG stipulates that information on the essential terms of the contract must be provided in writing. This means that the information obligations under the NachwG must be signed and handed over to the employee in printed form. Transmission as a scanned document or generally by email is therefore not sufficient.
2.2 Of course, it is possible to include the relevant information obligations in the employment contract itself. Some of the information obligations might already be part of templates for employment contracts. It should be examined in each individual case which information obligation is to be provided in an employment contract and which, for example, in a separate annex.
2.3 In any case, employment contract templates for recruitment from 1 August 2022 should be revised.
2.4 In future, violations of the NachwG will constitute administrative offences that can be punished with a fine of up to EUR 2,000. This applies in the event that companies do not hand over the essential terms and conditions of the contract in writing, or do not do so correctly, completely, in the prescribed manner or in good time.
Please do not hesitate to contact us if you have any further questions in connection with the upcoming change in the law. We will be happy to answer any legal questions arising from the changes and to implement appropriate measures.
Your kallan Employment Law Team