Browse through brief employment and labor law updates from around the globe. Contact a Littler attorney for more information or view our global locations.

Download full Q2 2022 Global Guide Quarterly

Significant Tightening of the German Law on the Provision of Evidence

New Legislation Enacted

Author: Lioba Lamers, Associate – vangard | Littler

The German legislator must implement the requirements of the European Directive 2019/1152 (Directive on transparent and predictable Working Conditions) by August 1, 2022. The latest draft bill of the German legislator published in April 2022 plans a significant tightening of the German law on the provision of evidence. According to the draft, employers must hand over to employees a transcript of all essential working conditions, e.g., in the form of the employment contract, signed in original. Electronic form is excluded.

For the first time, employers must pay fines for violations of the Evidence Act. In view of the considerable criticism of this draft, it remains to be seen whether the Evidence Act will actually be tightened to such an extent. Since the law is expected to be enacted at very short notice, employers should monitor the legislative process in order to be prepared, especially amend their standard employment contracts and organize their signature processes. We will keep you updated as to any developments.

Recording of Working Hours and Distribution of the Burden of Presentation and Proof for Overtime Compensation

Precedential Decision by Judiciary or Regulatory Agency

Author: Sabine Vianden, Associate – vangard | Littler

On May 4, 2022, the Federal Labor Court ruled for the first time on the impact of the European Court of Justice’s 2019 ruling on the obligation of recording of working hours on German law. The Federal Labor Court is sticking to its previous case law and denying the discussed effects of the ECJ ruling. Employees must show that they have performed work in excess of the normal working hours or that they were prepared to do so on the instructions of the employer and that the employer expressly or impliedly ordered, tolerated, or subsequently approved the overtime worked. For the time being, the status quo remains that in Germany there is neither a direct legal obligation to comprehensively record working hours nor an indirect one with regard to the burden of presentation and proof in overtime litigation. However, it remains to be seen whether the legislature will soon make changes as announced in the coalition agreement.

15-Month Time Limit for Claiming Leave

Precedential Decision by Judiciary or Regulatory Agency

Author: Kim Kleinert, Associate – vangard | Littler

In the event of continued incapacity for work, there is generally a 15-month time limit for claiming leave. In the case of regular vacation entitlements, employers have a duty to provide information about its expiration. In two cases (C 518/20; C 727/20), the European Court of Justice is being asked whether this duty to notify also applies to employees who are on long-term sick leave or are fully incapacitated. In his opinion, ECJ Advocate General Jean Richard de la Tour made it clear that the employer's cooperation is also required in these cases. It is likely that the ECJ will follow this opinion, which is why the decision is eagerly awaited and should be kept in mind by employers in particular.

German Whistleblower Protection Act

Proposed Bill or Initiative

Author: Matthias Pallentin, Senior Associate – vangard | Littler

A new draft bill of the Whistleblower Protection Act (Hinweisgeberschutzgesetz) has been prepared by the Federal Department of Justice. This draft bill is intended to implement the EU Whistleblower Protection Directive 2019/1937 and to establish a Whistleblower protection in German law for the first time. The draft bill introduces the obligation to set up internal reporting channels and follows the corresponding requirements of the Directive. Initially, only employers with at least 250 employees are obliged to set up corresponding channels. Only from December 17, 2023, will this also apply to companies with at least 50 employees.

In addition to other core elements such as comprehensive protection of whistleblowers against all reprisals (such as dismissal, but also any other unequal treatment in connection with the report), the draft includes the fundamental freedom of choice for whistleblowers: Whether a report is made internally to the body set up by the company or externally to the body set up at the Federal Department of Justice. Even though there may still be changes in the further course of legislation, employers are well advised to start dealing with this issue now - especially if they have not yet set up a whistleblowing system. But even employers who already have a whistleblowing channel in place should quickly begin to review it in light of the new requirements.