Quick Hits
- Volunteering may trigger certain duties of consideration (Rücksichtnahmepflichten) for employers.
- The specific activity is decisive, however, so each case must be assessed individually.
- As a general rule, volunteering remains a private matter.
What Is Volunteering?
Volunteering (Ehrenamt) generally means a voluntary activity that is not aimed at generating profit and benefits the public good. An expense allowance may be paid in the form of money, provided there is no genuine profit-making intent and no employment relationship exists.
The General Rule: Volunteering Is a Private Matter
Employees are generally free to organize their leisure time as they wish. For employers, this means that volunteering cannot be prohibited across the board. It becomes relevant under employment law only if the activity interferes with the employee’s work obligations, creates conflicts of interest, or affects legitimate business interests. Notification or approval requirements for secondary activities, which are regularly included in employment contracts, do not initially change this principle. They do, however, primarily give the employer an opportunity to assess whether the volunteering has a relevant connection to the employment relationship. If there is no such connection, the volunteering remains exclusively a private matter.
What Obligations May Employers Face?
As a general rule, there is no additional “right” to engage in volunteering that would give rise to claims against the employer. However, provisions are found in various special statutes, collective bargaining agreements, works agreements, or employment contracts. Accordingly, any potential claims must be assessed on a case-by-case basis.
Leaves of Absence
An entitlement to leave does not exist for every form of volunteering. For certain volunteer activities, however, the law provides entitlements to leave, often with continued payment of compensation or reimbursement claims against the responsible organization. For example, for the Federal Technical Relief Agency (THW) and the volunteer fire service, if employees are called to THW duty or, in the case of the volunteer fire service, to deployments, exercises, or training during their working hours, they must be released from work for the duration of those activities while continuing to receive their wages. Private employers can generally seek reimbursement from the municipality or the responsible authority.
Honorary judges must be released from work for the duration of their service under Section 45 (1a) sentence 2 of the German Judiciary Act (Deutsches Richtergesetz (DRiG)). Financial compensation is instead provided through claims under the German Judicial Compensation and Reimbursement of Expenses Act (Justizvergütungs- und -entschädigungsgesetz (JVEG)), including for lost time and loss of earnings. By contrast, during reservist service (although this is generally not a classic form of volunteering), the employment relationship is suspended. Private employers therefore generally do not owe regular continued wage payments.
Financial protection instead comes through special statutory benefits, particularly under the German Maintenance Security Act (Unterhaltssicherungsgesetz (USG)). Finally, candidacies for political office may also give rise to entitlements to leave. For candidates for the German Bundestag, unpaid election-preparation leave may be available under Article 48 of the German Basic Law (Grundgesetz (GG)) and Section 3 of the German Members of Parliament Act (Abgeordnetengesetz (AbgG)). For state-parliamentary and local-government mandates, the applicable state-law provisions control and may provide for leave or educational leave, depending on the state.
Special Dismissal Protection and Protection Against Discrimination
Volunteering alone does not trigger general special protection against dismissal. Many special statutes, however, contain prohibitions on adverse treatment or their own protective provisions. Honorary judges may not be dismissed because they have accepted or are performing their office; the Constitution of the State of Brandenburg (Brandenburgische Landesverfassung) goes further in Article 110 (1) sentence 2 by entirely excluding ordinary dismissal during the term of office. The THW and, generally, state-law provisions concerning the volunteer fire service and disaster relief also provide special protections against disadvantage. Political mandates and candidacies may likewise be protected.
Applications for a mandate, as well as the acquisition, acceptance, and exercise of a mandate may not result in adverse treatment at work. For Bundestag mandates, Section 2 (3) AbgG provides that termination or dismissal because of the acquisition, acceptance, or exercise of the mandate is impermissible and, otherwise, is permissible only for good cause. Protection against dismissal begins when the candidate is nominated by the party body responsible for doing so or when the election proposal is submitted. It continues for one year after the mandate ends. For state-parliamentary and local-government mandates, the applicable state law controls (see, e.g., Section 2 (3) of the Berlin State Parliament Act (Landesabgeordnetengesetz Berlin (LAbgG)).
Takeaways
Volunteering is an important part of participation in society. Under employment law, it nevertheless generally remains a private matter unless it affects the employment relationship. In that event, the legislature seeks to balance the interests of both sides: entitlements to leave, continued wage payments, and special protection against dismissal support volunteering without losing sight of employers’ legitimate interests. Individuals who volunteer deserve not only social recognition but also legal protection.
Tatjana Serbina, LL.M. is of counsel in Ogletree Deakins’ Berlin office.
Nele Büttner contributed to this article as an intern in Ogletree Deakins’ Berlin office.
Ogletree Deakins’ Berlin office will continue to monitor developments and will post updates on the Cross-Border, Employee Engagement, Germany, and Leaves of Absence blogs as additional information becomes available.
