German Employers Face Substantial New Regulations on Employment-Related Information Obligations

On June 23, 2022, the German parliament (Bundestag) passed a law to implement the European Union’s Directive 2019/1152 on Transparent and Predictable Working Conditions. The new law will go into effect on August 1, 2022. In addition to comprehensive information and documentation requirements for employers, the law introduces additional minimum requirements for working conditions. Below are the most important innovations for employers.

Amendments to the Act on Notifications of Conditions of Employment (Nachweisgesetz)

The most extensive changes have been made to the Act on Notifications of Conditions of Employment (Nachweisgesetz). Information that employers must notify their employees about in writing include:

• Details of remuneration: In addition to the basic salary, all additional remuneration components such as overtime pay, bonuses, premiums, and other financial benefits must be listed separately, including their respective due dates, and method of payment (e.g. bank transfer).
• Working time including break and rest periods. In case of shift work, additional information on the shift system, shift rotation, and prerequisites for shift changes have to be made. Moreover, overtime arrangements must be documented.
• Duration of a probationary period
• Places of work and, if applicable, whether employees are free to choose their place of work
• Expiration dates of time-limited employment contracts or their foreseeable duration
• On-call work: documentation requirements include advance notification periods for on-call work, a minimum number of paid working hours, and a specific time frame (reference days and reference hours) for on-call work. Corresponding amendments were made to the Act on Part-Time Work and Fixed-Term Employment (Teilzeit- und Befristungsgesetz).
• Notice periods and notice procedures in case of termination, including but not limited to the written form requirement and the three-week period for filing a termination protection lawsuit.
• Paid compulsory job training: following a corresponding amendment to the German Industrial Regulation Act (Gewerbeordnung), employers will no longer be allowed to pass on the costs of compulsory job training measures to employees. In addition, participation in such compulsory training measures will be considered working time and should take place during regular working hours, if possible.
• The names and addresses of the providers of any occupational pension scheme applied by the employer, unless such information is already mandatory to be provided by the respective pension provider.
• Postings of employees abroad: employees who are posted abroad for longer than four consecutive weeks must be informed by the employer in writing on essential arrangements prior to their departure.
• As required before already, employers must in addition document other essential terms of the employment relationship, such as the names and addresses of the contracting parties, start dates, job descriptions, vacation time, and general information on applicable collective agreements and works or service agreements.

Written form requirement

The law explicitly requires written (printed) documentation signed by employers to be handed over to employees. Digital information, e.g., via email or digitally concluded employment contracts, does not suffice.

Shortened documentation deadlines

Written information on key contract terms such as name and address of the contracting parties, remuneration, and working hours, must be handed over by the employers to the employees on the first working day at the latest. The remaining information must be provided within seven days. In the future, this obligation will also apply to temporary workers employed on a short-term basis only.

For employment relationships that went into effect prior to August 1, 2022, the new information requirements will apply only upon an employee’s request.

In the event of changes of essential working conditions, employees must be provided with written documentation at the latest upon the effective date of such change.

Violations of the new information and documentation requirements can be punished with administrative fines of up to 2,000 euros.

Amendments to Other Employment-Related Laws

In the course of implementing the EU Directive 2019/1152 on Transparent and Predictable Working Conditions, the German legislator amended several other employment-related laws.

• The Act on Temporary Agency Work (Arbeitnehmerüberlassungsgesetz) has been subject to substantial amendments. For example, after six months of temporary deployment, temporary agency workers can demand in text form (i.e. either via printed letter or digitally, e.g. via email) a reasoned response to their requests to conclude an employment contract with their hirer company. The hirer must reply to such a request in text form within one month of receipt of the request.
• The Part-Time Work and Fixed-Term Employment Act (Teilzeit- und Befristungsgesetz) provides for significantly extended employer obligations as well. An employee who expresses the wish to change their working hours must be informed by the employer about suitable vacancies. If the employment relationship lasted longer than six months, the employer must justify in text form why it declined to comply with the employee’s wish to change working hours. Comparable regulations apply to fixed-term employees who express a wish for permanent employment. In this case, the employer must give in text form its reason for the decision to turn down an employee’s request within one month of receipt of the request.
• In the case of a fixed-term employment relationship, the probationary period must in the future be in proportion to the expected duration of the fixed-term contract and the type of work.

Considerations for Employers

Existing employment contracts do not have to be amended. Instead, as of August 1, 2022, it will be sufficient to provide employees with the required additional information separately and in writing upon their request.

For new hires as of August 1, 2022, employers may wish to review their template employment contracts and HR procedures. In general, most of the required information should be contained in the template employment contracts already, so that only few additional amendments may be required. Alternatively, any information required in addition to the employment contract, such as the procedure for terminations, may be provided to the employees by a separate written notification.

Employers concluding employment contracts only digitally will in future face substantial issues.  As of August 1, 2022, in addition to a digitally concluded employment contract, employers will have to provide their employees with a signed hard copy, or they may wish to change their contract management altogether.

Ogletree Deakins’ Berlin office will host a webinar on the new requirements on employers’ employment-related information obligations in Germany.