Comparative Guides

Welcome to Mondaq Comparative Guides - your comparative global Q&A guide.

Our Comparative Guides provide an overview of some of the key points of law and practice and allow you to compare regulatory environments and laws across multiple jurisdictions.

Start by selecting your Topic of interest below. Then choose your Regions and finally refine the exact Subjects you are seeking clarity on to view detailed analysis provided by our carefully selected internationally recognised experts.

4. Results: Answers
Labour and Employment
Employment rights and representations
What, if any, are the rights to parental leave, at either a national or local level?

Answer ... Any employee whose child (and in some cases grandchild) lives in the same household is entitled to a parental leave. The leave can be requested in one block after the child’s birth; alternatively, up to 24 months’ leave may be taken between the child’s third and eighth birthdays. Both parents may take parental leave at the same time.

An employee is further entitled to work on a part-time basis for his or her usual or a new employer while taking parental leave. However, only part-time work of between 15 and 30 hours per week may be claimed and enforced in court if the employer regularly has more than 15 employees, the employee has been employed for at least six months and the employer cannot point to urgent operational reasons that would prevent the employee from working part time.

The employer may give notice to an employee who is on parental leave only after obtaining permission to do so from a state authority.

Separate from parental leave, statutory German law also provides for maternity leave.

In addition, subject to a medical certificate or particular employment conditions, other restrictions or even statutory prohibitions may apply to pregnant employees. The employer may give notice to a pregnant employee only after obtaining permission from a state authority.

For more information about this answer please contact: Bernd Weller from Heuking Kuehn Lueer Wojtek PartGmbB
How long does it last and what benefits are given during this time?

Answer ... The parental leave may take up to a maximum of three years. During parental leave, the employee is entitled to remuneration only if and insofar as he or she is working. The employee may further be entitled to receive a state subsidy, depending on his or her earnings during that period.

Maternity leave starts six weeks before the (estimated) date of birth (unless waived by the pregnant employee) and ends eight weeks after the (actual) date of birth. This maternity leave cannot be waived. During maternity leave and where statutory employment prohibitions apply, the employer must continue to pay the employee. However, the employer will be reimbursed for most of this amount by statutory health insurance.

For more information about this answer please contact: Bernd Weller from Heuking Kuehn Lueer Wojtek PartGmbB
Are trade unions recognised and what rights do they have?

Answer ... Establishment of trade unions, membership of trade unions and the exercise of collective freedom are protected by the German Constitution. As a consequence, trade unions may call employees on strike. Unlike in Southern European countries, a strike is permissible only if it is aimed at the conclusion of a collective bargaining agreement (ie, ‘political’ strikes are not permissible), and subject to the precondition that there is no binding collective bargaining agreement already in place with regard to any of the strike goals.

Trade unions further have the right to advertise themselves within the workplace. However, this right is limited to unpaid time (ie, during work breaks), in ‘public’ places (eg, representatives may not walk alone on the premises), and to a proportionate extent (eg, once per calendar quarter). A union cannot force the employer to conclude a collective bargaining agreement with it; it can only enforce negotiations through the pressure caused by a strike.

The Works Constitution Act, which regulates employees’ right to elect employee representative bodies within the workplace, further grants particular rights to trade unions, as long as at least one member is employed in that particular workplace. In such case, the trade union may control whether the elected works council (whose members are elected by employees at the relevant workplace and need not have any relation with the trade union) observes its statutory rights and duties.

Finally, German law requires companies of a certain size and legal form to establish a supervisory board and include employee representatives on the board. It is the supervisory board’s role to control the management board of the company and to negotiate the remuneration of management board members. Where companies are obliged to establish a supervisory body, trade unions may be entitled to have one or several members serve as employee representatives on the supervisory board.

German law prohibits retaliation against employees due to membership of or activity on behalf of trade unions.

For more information about this answer please contact: Bernd Weller from Heuking Kuehn Lueer Wojtek PartGmbB
How are data protection rules applied in the workforce and how does this affect employees’ privacy rights?

Answer ... Employees’ privacy rights are stipulated in the Federal Data Protection Act – the German statute which implements the EU General Data Protection Regulation – and the laws of the various German federal states. German law is based on the principle that data processing is permissible only if it is justified – whether by needs of a contractual nature (eg, processing employees’ bank data in order to pay their remuneration), by explicit individual consent (which can be withdrawn at any time) or by a collective agreement (eg, a works council agreement). The transfer of data to other legal entities must also be justified. As a consequence, the transfer of employee data from one group company to another (even a holding company) is prohibited, unless there is a ‘real’ justification for the transfer. Breaches of the data protection and privacy laws may incur severe fines (up to 4% of the group’s global revenue) or may constitute criminal offences.

For more information about this answer please contact: Bernd Weller from Heuking Kuehn Lueer Wojtek PartGmbB
Are contingent worker arrangements specifically regulated?

Answer ... Yes, contingent worker arrangements are regulated in the Act on Temporary Hiring-out of Employees. This law has been amended frequently in recent years. The core regulations basically require contingent staffing agencies to obtain advance state permission for their business. Restrictive rules also apply to individual instances of contingent staffing. Most importantly, a contingent worker may not be hired out for more than 18 consecutive months to the same customer, and must be offered equal pay compared to standard employees of the customer performing comparable work.

Furthermore, the customer of a contingent staffing agency bears (subsidiary) responsibility for the accurate payment of remuneration, social security contributions and taxes by the agency.

Any breach of the law will have strict consequences, ranging from fines to the withdrawal of permission to hire out employees, the establishment of an employment relationship between the contingent worker and the customer, or even imprisonment.

Irrespective of the above, contingent worker arrangements are an important part of the labour market and contingent staffing agencies have been very successful in boosting their business over the last decade.

For more information about this answer please contact: Bernd Weller from Heuking Kuehn Lueer Wojtek PartGmbB