Claims from the employment relationship

According to a ruling by the Fifth Senate of March 17, 2010 (- 5 AZR 301/09 -), the agreement to pay out remuneration without taking taxes and social security contributions into account (“black”) does not in itself constitute a net wage agreement. With a black money agreement, the parties to the employment contract only aim to evade taxes and social security contributions, but not to ensure that the employer pays them. Also from Section 14 Para. 2 SGB IV does not follow a net wage agreement. Accordingly, for an illegally employed employee, a net salary is deemed to be agreed upon when calculating the total social security contributions to be claimed. However, this fiction only affects social security law and does not extend to the civil law legal relationship between the employment contract parties.

According to § 79 para. 1 Normal contract stage (NV stage) includes the remuneration paid to opera choir members, among other things. short solo speaking and/or singing performances are compensated. For the takeover of smaller lots, in accordance with Section 79 Para. 2 letter a NV stage, on the other hand, must pay an appropriate special remuneration. The same applies according to Section 79 Paragraph. 3 NV Stage for participation in concerts, unless they are concert performances of a musical stage work. According to a decision of the Sixth Senate of December 16, 2010 (- 6 AZR 487/09 -), a “smaller part” is subject to special remuneration if the opera choir member leaves the opera choir collective as a soloist. This presupposes that it provides a service that is independent of the specific production and its scope. Against this background, the lawsuits of a total of seven plaintiffs who took part in performances of the opera “Idomeneo” by Mozart and/or in a concert performance of the lyric suite “Life in Our Time” by Edmund Nick were unsuccessful. The plaintiffs had – as provided for in Section 53 NV stage – initially

the stage called arbitration. As with the Labor Court and the State Labor Court, the lawsuits aimed at overturning the arbitration award of the Stage Higher Arbitration Court were unsuccessful before the Federal Labor Court. The Higher Stage Arbitration Court rightly viewed the plaintiffs’ singing performances in the opera “Idomeneo” as short solo performances that did not require special remuneration. The mere fact that in all singing performances in dispute the vocal groups were only performed individually (“solo”) in accordance with the score does not trigger an obligation to pay special remuneration. In the absence of any different scenic aspects, the Higher Stage Arbitration Court made no legal error based on the score, which embodied the composer’s musical will, and assessed the solo performances as short. This also applied to the Male Quartet No. 5 in the Lyric Suite. Since it also involved singing performances as part of the concert performance of a musical stage work, a claim was also ruled out on the basis of Section 79 Paragraph. 3 NV stage off.

According to Section 4 Para. 1 EFZG to continue to pay the wages to which he is entitled based on his regular working hours. The legally regulated continued payment of wages also includes the salary components that are not set in monthly amounts, unless these are covered by Section 4 Paragraph. 1a EFZG fallen. From what is stated in Section 4 Para. 1 EFZG, § 21 sentence 2 TVöD deviates from the wage loss principle for the wage components that are not set in monthly amounts. These are paid as an average based on the last three full calendar months before the start of the incapacity for work. If the scope of the agreed working hours was changed less than three full calendar months before the start of the inability to work, this calculation period is shortened to two full calendar months or one full calendar month in accordance with Protocol Statement No. 1 to Section 21 Sentence 2 TVöD. In the event that there is less than a full calendar month between a change in working hours and the start of the incapacity to work due to illness, the collective agreement does not make any provision for taking into account remuneration components that are not set in monthly amounts. This means that the legally regulated principle of loss of earnings remains. This was decided by the Fifth Senate in its judgment of January 20, 2010 (– 5 AZR 53/09 -). If a collective agreement is intended to provide for one of Section 4 Para. 1 EFZG, if a different assessment basis for the wages to be continued is determined, this requires clear regulation.

According to Section 294 of the German Civil Code (BGB), the employer is only in default of acceptance if the employee offers the work in the way it is to be performed. If the work to be performed by the employee is only outlined in the employment contract, it is the employer’s responsibility, according to Section 106 Sentence 1 GewO, to determine the content of the work to be performed in more detail. The employer comes after a ruling by the Fifth Senate on May 19, 2010 (- 5 AZR 162/09 -) Therefore, there is no default in acceptance if the employee, who, for personal reasons, is no longer able to carry out the work previously effectively assigned by the employer, offers other work – which is suitable for suffering – within the scope of the employment contract agreement. However, in this case the employer can, due to the duty of consideration under Section 241 Para. 2 BGB, his contractual right of direction is as follows

exercise again so that the employee is able to provide services again. If the employer culpably violates this obligation, a claim for damages is made in accordance with Section 280 Paragraph. 1 BGB due to loss of remuneration. The employer’s obligation to redefine the work to be carried out by the employee presupposes that the employee demands the transfer to a job that is compatible with suffering and has informed the employer how he envisages his future employment in order to eliminate the obstacles to performance that have arisen. As a rule, the employer must comply with the request if it is reasonable and legally possible for him to assign the new activity. Reasonableness can be assumed if neither operational reasons – which can also include economic considerations – nor duties of consideration towards other employees conflict with this. Ist kein leidensgerechter Arbeitsplatz frei, kann die Zuweisung einer anderen Tätigkeit auch durch den Austausch mit anderen Arbeitnehmern erfolgen. This requires that the employer can assign another job to the employee to be exchanged using the right of direction, that the implementation corresponds to his reasonable discretion and that the employee has agreed to the change of job. Legally, it is impossible to assign another job if the works council has approved the transfers associated with an exchange of employees in accordance with Section 99 Paragraph. 1 BetrVG has refused. The employer is not required to carry out a consent replacement procedure in accordance with Section 99 Para. 4 BetrVG must be carried out.

If a collective agreement uses a legal term in statutory language, this term must be interpreted in its general legal meaning, unless the collective agreement states otherwise. Against this background, the Fifth Senate in a judgment of March 17, 2010 (- 5 AZR 317/09 -) A collective agreement that provides for surcharges for work on public holidays is interpreted as meaning that this surcharge for work on Easter Sunday is only to be paid if this day is a state-recognized holiday under state law. The decisive factor here is the law of the country in which the place of performance of the employment relationship is located. In the case of the dispute, these requirements were not met. The Senate also denied a claim to payment of the holiday surcharge based on a company exercise. If – as in this case – the workforce assumes, when accepting a service from the employer, that the employer is thereby implementing the provisions of a collective agreement, the granting of the service cannot be legally understood as a tacit offer to justify a company exercise with the content of a service above the collective agreement.

According to the regulations of the TV-L, the amount of the employees’ monthly remuneration is determined, among other things. after assignment to a pay level. According to § 16 para. 2 Sentence 1 TV-L, employees are assigned to level 1 when they are hired unless they have relevant professional experience. When taking into account periods of relevant professional experience, Section 16 Para. 2 Sentence 2 and 3 TV-L between employees who establish a new employment relationship with the same employer after an interruption that usually lasts a maximum of six months, and those who move from another employer to the country. According to a ruling by the Sixth Senate of September 23, 2010 (– 6 AZR 180/09 -), this differentiation is consistent with the principle of equality in Article 3 Paragraph. 1 GG compatible. A violation of this only occurs if something that is essentially the same is treated differently or if something that is essentially different is treated the same. In principle, it is up to the standard setter to determine the characteristics according to which circumstances are to be viewed as sufficiently similar in order to regulate them equally. With regard to the provisions of Section 16 Para. According to the concept pursued by the collective bargaining parties, the groups of people covered by paragraphs 2 sentences 2 and 3 TV-L do not have essentially the same facts. With sentence 2 of this provision, the collective bargaining parties wanted to protect the rights of those who had previously worked in the public service for the same employer. Employees who move to the country from another employer – especially one under private law – do not have such vested rights, which the parties to the collective agreement consider to be worthy of protection. In addition, the parties to the collective agreement were allowed to assume from a typical perspective that there are reasons that justify different consideration of the acquired professional experience. They were entitled to assume that in the vast majority of cases, after being reemployed by the state, employees will be able to put to full use the professional experience they previously acquired there more quickly than employees who acquired their professional experience in the often completely different structures at other employers have.

According to § 8 para. 5 Sentence 1 TVöD, employees who constantly work alternating shifts receive a monthly allowance. According to a decision of the Tenth Senate of March 24, 2010 (– 10 AZR 58/09 -), the entitlement to payment of this allowance basically requires that the employee performs the work in the alternating shifts

actually provides. However, it is the same as the actual performance of the work if the performance of a certain type of shift or the night shifts required by the collective agreement is not carried out simply because the employee is in accordance with Section 21 Sentence 1 TVöD due to illness, vacation, additional leave, time off work or release on December 24th and 31st is exempt from performing work with continued payment of salary. In these cases, it is sufficient if the employee would have worked the required shifts without the exemption from work. There are clear indications that the parties to the collective agreement are relying on the loss of pay principle of Section 4 Para. with regard to the allowance for permanent alternating shift work. 1 EFZG and the regulation of Section 1 BUrlG to the detriment of the employees cannot be found in the collective bargaining standards.

The child-related local allowance of an employee working part-time within the scope of the collective agreement for the adaptation of the collective bargaining law – general collective bargaining regulations (BAT-O) is not payable in accordance with Section 34 Para. 1 Sentence 1 BAT-O must be shortened pro rata. The regulation takes place in accordance with Section 29 Section B Paragraph. 6 Sentence 3 BAT-O no application. After the transfer to the TVöD, the full-time employed spouse would be entitled to a vested status allowance in accordance with Section 11 of the transfer collective agreements and thus a benefit corresponding to the child-related local allowance. The spouse’s eligibility does not depend on the actual receipt of child benefit, but rather on whether he would have been entitled to the property allowance if he had been designated as a beneficiary of child benefit. With judgment dated February 25, 2010 (- 6 AZR 809/08 -) the Sixth Senate has confirmed its previous case law on the property allowance (vgl. BAG 13 August 2009 – 6 AZR 319/08 -). After the part-time employee was transferred from BAT-O to TV-L, he was therefore entitled to a corresponding vesting allowance in accordance with Section 11 Paragraph. 1 of the collective agreement on the transfer of employees from the federal states to the TV-L and on the regulation of transitional law (TVÜ states).

§ 12 Abs. 1 Sentence 1 TVÜ-Bund provides for the payment of a so-called structural compensation for federal employees transferred to the TVöD, provided that the conditions required according to the structural compensation table (Appendix 3 to the TVÜ-Bund) are met. The Sixth Senate had to decide in a decision on April 22, 2010

(- 6 AZR 962/08 -) deal with the question of whether what is contained in this table The feature “Promotion – without” is to be understood as meaning that the remuneration group relevant for the transfer was not achieved through a previous promotion, or whether it simply requires that no further promotion was possible from the remuneration group relevant on the transfer date. Since the wording, the overall collective agreement context, the meaning and purpose of the regulation as well as the practicability of both possible interpretations do not lead to a clear interpretation, it is necessary to go back to the history of the emergence of the structural compensation in the TVÜ-Bund and the will of the collective bargaining parties expressed in it. The Senate has therefore referred the legal dispute back to the lower court for further clarification. If the parties to the collective agreement do not agree on the will to regulate, the controversial feature would have to be interpreted in such a way that it is sufficient that no further promotion was possible on the deadline of October 1, 2005. In this case, the aspect of clarity of the norm requires that preference be given to the interpretation that appears to be more obvious when reading the regulation impartially and is therefore typically perceived as authoritative by the addressees of the norm.

§ 18 Abs. 2 TVöD (VKA) provides for the introduction of a performance fee on January 1, 2007. If no company regulation has been reached in this regard by July 31, 2007, the employees must, in accordance with sentence 6 of the protocol declaration on Section 18 Paragraph. 4 TVöD (VKA) with the table fee for the month of December 2007 entitlement to an undifferentiated performance fee for the year 2007 in the amount of 12% of the table fee due for the month of September 2007. According to a ruling by the Sixth Senate on September 23, 2010 (- 6 AZR 338/09 -), the claim depends neither on the payment of the salary nor on the existence of a claim to compensation for the month of September 2007. The meaning and purpose of the regulation means that the undifferentiated performance remuneration is not a one-off payment with a deadline regulation. The payment represents a surrogate for the payment pursuant to Section 18 Para. 2 TVöD represents the differentiated performance fee to be introduced for the entire year 2007. The funds for this were generated in 2006. A deadline regulation would have no relation to this purpose, so that with such an understanding of the norm, the general principle of equality in Article 3 Para. 1 GG would be violated. By referring to the table remuneration “due” in September 2007, the collective agreement only establishes an assessment basis.

According to Section 10 No. 1 of the wage framework agreement in the metal and electrical industry of North Rhine-Westphalia (ERA), employees on temporary wages receive, in addition to the basic monthly wage resulting from the wage agreement, a performance bonus, which is based on an annual assessment. The employer can, in accordance with Section 10 Para. 6 ERA correct the operational total of all performance bonuses to 11% if the annual performance assessments lead to this value being exceeded. However, for employees whose scores have remained the same or increased after the reassessment, this may not lead to a reduction in the euro amount of their performance bonus. According to a decision of the Fifth Senate of November 10, 2010 (- 5 AZR 603/09 -), the collective bargaining safeguard clause already applies in the first assessment after the introduction of the wage framework agreement. The clause does not require that the – previous – performance appraisal was carried out in accordance with the ERA criteria. Such a restriction may correspond to the wording of Section 10 Para. 6 ERA cannot be taken. The difference in the assessment criteria before and after the introduction of the ERA does not stand in the way of this. The purpose of the security clause is to protect employees from a reduction in pay if the number of performance points remains the same or increases. The collective agreement does not contain any distinction as to how these points came about.

According to § 79 para. 1 Normal contract stage (NV stage) includes the remuneration paid to opera choir members, among other things. short solo speaking and/or singing performances are compensated. For the takeover of smaller lots, in accordance with Section 79 Para. 2 letter a NV stage, on the other hand, must pay an appropriate special remuneration. The same applies according to Section 79 Paragraph. 3 NV Stage for participation in concerts, unless they are concert performances of a musical stage work. According to a decision of the Sixth Senate of December 16, 2010 (- 6 AZR 487/09 -), a “smaller part” is subject to special remuneration if the opera choir member leaves the opera choir collective as a soloist. This presupposes that it provides a service that is independent of the specific production and its scope. Against this background, the lawsuits of a total of seven plaintiffs who took part in performances of the opera “Idomeneo” by Mozart and/or in a concert performance of the lyric suite “Life in Our Time” by Edmund Nick were unsuccessful. The plaintiffs had – as provided for in Section 53 NV stage – initially

the stage called arbitration. As with the Labor Court and the State Labor Court, the lawsuits aimed at overturning the arbitration award of the Stage Higher Arbitration Court were unsuccessful before the Federal Labor Court. The Higher Stage Arbitration Court rightly viewed the plaintiffs’ singing performances in the opera “Idomeneo” as short solo performances that did not require special remuneration. The mere fact that in all singing performances in dispute the vocal groups were only performed individually (“solo”) in accordance with the score does not trigger an obligation to pay special remuneration. In the absence of any different scenic aspects, the Higher Stage Arbitration Court made no legal error based on the score, which embodied the composer’s musical will, and assessed the solo performances as short. This also applied to the Male Quartet No. 5 in the Lyric Suite. Since it also involved singing performances as part of the concert performance of a musical stage work, a claim was also ruled out on the basis of Section 79 Paragraph. 3 NV stage off.

Sections 5 and 6 of the generally binding vacation regulations for commercial employees in the construction industry in Bavaria (as amended from May 19, 2006) stipulate that vacation pay due to loss of work due to seasonal short-time work in the period from December to March and temporary loss of work reduced as a result of short-time work. In addition, the collective agreement sets a flat rate of vacation pay at 11.4% of the gross wage that the employee is entitled to claim before the start of the vacation in the vacation year

hat. This means that the collective agreement for the calculation of vacation pay deviates from Section 11 Para. 1 sentence 3 BUrlG and from that in § 11 para. 1 sentence 1 BUrlG three-ten week reference period. According to a ruling by the Ninth Senate of November 17, 2009 (- 9 AZR 844/08 -), these deviations are due to the opening clause in Section 13 Paragraph. 1 sentence 1 BUrlG covered. The Senate was able to leave it open whether the flat rate of the fee was also covered by this. In any case, in the case of seasonal short-time work benefits, this deviation is influenced by the special opening clause, among other things. for the construction industry in Section 13 Para. 2 Sentence 1 BUrlG recorded. A request for a preliminary ruling under Article 267 TFEU was not necessary. The Senate also did not have to decide whether the opening clauses in the BUrlG and the collective bargaining regulations met the objective of Article 7 para. 1 of Directive 2003/88/EC (Working Time Directive) correctly. This requires Member States to take the necessary measures to ensure that every worker receives a minimum of four weeks of paid annual leave. The interpretation of Article 7 of the Working Time Directive was not relevant to the legal dispute.

lich. Even if one were to assume that the Working Time Directive wants to guarantee a right to continued payment of normal wages without reduction (e.g. through periods of short-time work) during the minimum annual vacation, the statutory opening clauses and the collective bargaining regulations should not remain unapplied. Article 7 of the Working Time Directive does not apply directly in private legal transactions. An interpretation of the regulations in accordance with the directives or further development of the law is also not possible. This would contradict the wording, system, purpose and legal history of the domestic regulations.

According to a decision of the Ninth Senate of March 23, 2010 (- 9 AZR 128/09 -), the collective bargaining parties may claim vacation and vacation compensation that correspond to the provisions of Art. 7 Para. 1 of the Working Time Directive and §§ 1, 3 para. 1 BUrlG, the minimum years of holiday entitlement exceeding four weeks can be freely regulated. Your regulatory power is not limited by the training in accordance with the guidelines in Section 7 Para. required for statutory vacation entitlements. 3 and 4 BUrlG (see. BAG March 24th 2009 – 9 AZR 983/07 -) limited. According to the clear directive law and the established case law of the Court of Justice of the European Union, there is no EU law that prevents a collectively agreed forfeiture of the statutory holiday entitlement and its compensation. The Senate has thus transferred its previous case law on supra-statutory contractual vacation and vacation compensation claims to corresponding collectively agreed claims (see. BAG March 24, 2009 – 9 AZR 983/07 -). At the same time, the Senate continued to adhere to its rule of interpretation, according to which there must be clear evidence of the (collective) agreement parties’ intention to regulate, which distinguishes between statutory and supra-statutory vacation entitlements. These usually occur when the (collective) contractual parties largely break away from the statutory vacation regime through independent regulations. In the event of a dispute, the Senate approved these requirements. He also decided that the additional leave entitlement under severe disability law arises from Section 125 Para. 1 sentence 1 SGB IX determined according to the rules of statutory minimum vacation. As a result, the additional leave must be compensated after the end of the employment relationship even if it could not be granted because the employee exceeded the transfer period in Section 7 Para. 3 Sentence 3 BUrlG was ill and unable to work. The principle of the protection of legitimate expectations does not conflict with this. The long-standing case law of the Federal Labor Court, which since 1982 based on the forfeiture of holiday (compensation) claims if incapacity for work continued until the end of the transfer period, was suitable for justifying the employer’s trust in the continued existence of this legal right.

to justify the speech. However, this trust was no longer worthy of protection since the implementation deadline for the first working time directive 93/104/EC expired on November 23, 1996.

According to Section 13 Paragraph, the temporary worker has 3 Sentence 1 and 2 of the Federal Association of Temporary Employment Personnel Services. V. concluded collective agreement (MTV BZA) during the vacation you are entitled to the agreed wage as well as the agreed surcharges for Sunday, public holiday and night work. According to a ruling by the Ninth Senate of September 21, 2010 (- 9 AZR 510/09 -), this provision does not contain any of Section 11 Para. 1 sentence 1 BUrlG deviating regulation. In the event of a dispute, the employment contract parties had agreed, in addition to the collectively agreed salary, an allowance for work with the client and a flat rate for shift work at night. Both compensation components are in accordance with Section 11 Para. 1 Sentence 1 BUrlG is to be used as a basis for calculating holiday pay and holiday compensation. The wording of Section 13 Para. 3 MTV BZA contains no indication that compensation components above the collective agreement should not be paid during vacation. For the statutory minimum vacation, the parties to the collective agreement would not be authorized to exclude from the calculation, in order to reduce the wage, those wage components that would have been incurred without the vacation-related exemption (requirement to ensure the usual wage). 13 para. 1 BUrlG wanted to make regulations that violated cannot be accepted. Since there was a lack of information as to how high the average earned shift night work allowance was in the respective reference periods before the start of the vacation, the Senate remanded the legal dispute.

According to Section 12 Para. 4 of the collective agreement for doctors at municipal hospitals in the area of the association of municipal employers’ associations (TV doctors/VKA) in the version valid until April 30, 2010 (since § 12 para. 5 TV-Ärzt/VKA) The employer has the right to choose whether to remunerate the working hours calculated for on-call services or to compensate for them through free time. The compensatory time off is granted when the employer releases the doctor from his obligation to perform work and thus reduces the doctor’s planned working hours. If the doctor is obliged to perform work after completing an on-call service due to the contractual agreements, he can actually be charged due to compliance with

If you are not required to work during the rest period in accordance with Section 5 of the ArbZG, compensatory free time can also be provided during this time. According to a ruling by the Sixth Senate of July 22, 2010 (- 6 AZR 78/09 -), neither the purpose of compensatory time off nor Section 5 of the ArbZG conflicts with this. The granting of rest time does not require that the doctor be released from his work duties without pay. The only decisive factor is that the employee is not used within the legally stipulated period to an extent that justifies classification as working time. Section 5 of the ArbZG does not prescribe the contractual structure through which the employer ensures that the employee is not required to perform work during the rest period. Also § 12 para. 4 of the collective agreement is not aimed at guaranteeing “more free time”. The doctor is therefore not entitled to be granted unpaid rest time and then paid compensatory time off after completing on-call duty.

During the legal existence of an employment relationship, the employee is fundamentally prohibited from any competitive activity to the detriment of his employer, even without corresponding individual or collective agreement regulations (see only BAG September 20, 2006 – 10 AZR 439/05 -). In a decision of March 24, 2010 (- 10 AZR 66/09 -), the Tenth Senate expressed concerns as to whether this also applies to simple (side) activities, which can at best lead to subordinate economic support for the competing company and otherwise do not affect the employer’s interests worthy of protection. When determining the scope of the non-competition clause in the current employment relationship, the provisions of Art. 12 para. 1 GG protected occupational freedom of the employee must be taken into account. This suggests that, as part of an overall assessment of all the circumstances of the individual case, it must be determined whether the other activity endangers or impairs the interests of the employer. In the event of a decision, the Senate could leave this question hanging. Due to the collective bargaining regulations relevant to the plaintiff, the general non-competition clause was restricted in favor of the employees during the ongoing employment relationship. A secondary employment at a competing company could only be prohibited if reasons of “direct competition” spoke against it. Such reasons only exist if the employee’s position or the type of activity threatens to directly harm the employer’s interests worthy of protection. In the case of the dispute, the Senate rejected these requirements. A non-competition agreement agreed for the period after the termination of the employment relationship is in accordance with Section 74a Para. 1 Sentence 1 HGB is non-binding for the employee insofar as it does not serve to protect a legitimate business interest of the employer. According to a ruling by the Tenth Senate of April 21, 2010 (- 10 AZR 288/09 -), the employer lacks such an interest if he also prohibits the former employee from carrying out sales activities at a commercial level at which the employer is not involved operated. In this case, for the employee to be entitled to payment of waiting compensation, it is sufficient that the employee observes the prohibition in its binding part. Unlike Section 74 Para. 2 HGB, the maternity leave compensation does not depend on the employee exercising a right to choose in favor of compliance with the entire non-competition clause. This is shown by the explicit differentiation in Section 74a Paragraph. 1 HGB between the binding and the non-binding part of the ban. In addition, it would contradict the protective purpose of this norm and the professional freedom protected by Article 12 of the Basic Law if the right to compensatory leave depended on the employee also complying with the ban in its non-binding part. Due to the freedom of contract, according to a decision of the Tenth Senate of July 14, 2010 (- 10 AZR 291/09 -), preliminary contracts are generally permitted even in the case of non-competition clauses. If the employee undertakes in the preliminary contract to conclude a post-contractual non-competition clause at the employer’s request, this preliminary contract is in accordance with Section 74a Para. 1 Sentence 1 of the German Commercial Code is non-binding if the option granted to the employer is not limited to the time until notice of termination is given or until a termination agreement is concluded. Without a fixed time limit for the obligation, the situation and interests for the employee are similar to those of an impermissibly conditional non-competition clause (cf. BAG May 22, 1990 – 3 AZR 647/88 -). Since the preliminary contract in this case has the effect of a non-binding non-competition clause, the employee can choose between freedom of competition without compensation and non-competition under the conditions of the preliminary contract. No decision was required as to whether, in the case of a non-binding preliminary contract, the employee must declare to the employer how he would exercise his right to choose. The legal dispute was referred back to the lower court. It has not been clear from the findings so far whether the written form requirement that also applies to the preliminary contract, which is required under Section 74 Para. 1 HGB must be observed in non-competition clauses had been complied with.

A contractual penalty agreement in a standard employment contract puts the employee at an unreasonable disadvantage and is therefore in accordance with Section 307 Para. 1 BGB is invalid if it stipulates a contractual penalty in the amount of one gross monthly salary in the event that the employee prematurely terminates his employment relationship, which can be terminated with two weeks’ notice during the probationary period, in breach of contract (BAG March 4, 2004 – 8 AZR 196/03 -). That the employee actually only terminates the employment relationship after According to a decision of the Eighth Senate of September 23, 2010 (- 8 AZR 897/08 -), the expiry of the probationary period with a notice period of 12 weeks at the end of the month in violation of the contract does not change the invalidity of the clause. The decisive point in time for assessing the effectiveness is the conclusion of the contract. It is not possible to divide the clause into a permissible part before and an inadmissible part after the end of the probationary period. A valid reduction for the period in which the probation period notice period no longer applies is also not possible. Maintaining the clause with a – limited – permissible content would not be compatible with the protective purpose of §§ 305 ff. BGB. A supplementary contract interpretation is also not possible, as the risk of using pre-formulated contractual conditions would then no longer lie with the user.

According to Section 13 Para. 2 GmbHG, liability for liabilities of a GmbH is limited to the company’s assets. Personal liability of the managing directors of a GmbH only comes into consideration in exceptional cases if there is a special reason for liability (cf. BAG November 21, 2006 – 9 AZR 206/06 -). Continuing its previous jurisprudence, the Ninth Senate ruled on February 23, 2010 (-9 AZR 44/09 -) decided that § 8a para. 1 AltTZG (as amended until December 31, 2008) does not establish any direct liability for legal representatives of legal entities. According to this standard, the employer is obliged, under the conditions listed in the law, to appropriately offset the employee’s credit balance, including the employer’s share of the total social security contribution, with the first credit when concluding a partial retirement contract

to protect against the risk of insolvency. § 8a Abs. 1 AltTZG aF is only a protective law in relation to the employer. § 823 Abs. 2 BGB. Its legal representatives are not the addressees of the standard. The regulation is only intended to strengthen the employee’s position vis-à-vis the employer. The version of Section 7e Paragraph that came into force on January 1, 2009. 7 Sentence 2 SGB IV shows that the legislature has only had the will to regulate personal liability in general insolvency protection for valuable assets since this time. Accordingly, the managing director may be held liable under Section 823 Para. 2 BGB iVm. § 8a Abs. 1 AltTZG aF cannot be derived from a guarantor position. The prerequisites for the so-called breach of trust (Section 266 Para. 1 Alt. 2 StGB) were also not met in the decision. Even if Section 8a Para. 1 AltTZG was intended to establish a fiduciary duty of care necessary for the breach of trust, no facts were identified that would have suggested at least a limited intention on the part of the managing directors being sued.

If an employee is entitled to a variable salary component according to a target agreement according to the employment contract, this results in the employer’s obligation to negotiate with the employee about concluding a target agreement and to offer him realistic targets for the respective target period. If a target agreement is not reached, the employer is liable after the end of the target period in accordance with Section 280 Para. 1, Abs. 3, § 283 sentence 1, § 252 BGB obliges to pay the employee compensation for lost remuneration if he is responsible for the failure to reach the target agreement (BAG December 10, 2008 – 10 AZR 889/07 -). According to a decision of the Tenth Senate of May 12, 2010, the employer’s obligation to negotiate with the employee about the goals to be achieved in the respective period remains (-10 AZR 390/09 -) regularly also exist if the employment contract parties agree that a target agreement should continue to apply until a follow-up agreement is concluded. The agreed aftereffect results in the temporary continued validity of the expired target agreement. However, the negotiation obligations with regard to a subsequent target agreement are not simply resolved. Since the Senate was unable to decide on the basis of the previous findings whether the defendant had culpably violated its negotiating obligations in the dispute, the legal dispute was referred back to the State Labor Court for a new hearing and decision.

If the employee makes a declaratory acknowledgment of guilt, then, according to a judgment of the Eighth Senate of July 22, 2010 (- 8 AZR 144/09 -), he is then excluded with the objections that he knew when making the acknowledgment or with which he at least expected. If the acknowledgment of guilt serves to remove the employee’s obligation to pay compensation and its amount from the dispute between the parties, the employee cannot later object that the employer could not prove damage of this amount or could only prove it using inadmissible means. However, the acknowledgment of guilt due to immorality can be made in accordance with Section 138 Para. 1 BGB may be void if there is a noticeable disproportion between performance and consideration. What is relevant here is not the evidence of the damage settled between the parties, but rather the way in which the parties arrived at the recorded amount of damage when making the acknowledgment. In principle, it does not violate good morals to undertake, on one’s own responsibility, financial services that can only be provided under particularly favorable conditions. This applies in particular when it comes to the employee’s obligations arising from his own unlawful actions, which are to be regulated by means of an acknowledgment. If the employee has admitted to embezzling a significant amount and the employer then threatens to file a criminal complaint, this does not constitute an immoral situation for the employee. Also a challenge due to unlawful threats in the sense of. § 123 BGB is excluded. The proposed behavior is no more illegal than the purpose it pursues and the connection between the two.

According to Section 70 Sentence 1 BAT, claims arising from the employment relationship expire if they are not asserted in writing within a preclusion period of six months after the due date. According to a decision of the Fourth Senate of July 7, 2010 (- 4 AZR 549/08 -), it is not necessary for the assertion to be personally signed with a name signature. That in § 126 para. The written form requirement provided for in Section 1 of the German Civil Code (BGB) does not apply. Asserting a claim is not a legal transaction, but rather an act similar to a legal transaction. An analogous application of this provision is also ruled out in view of the meaning and purpose of the exclusion period. Rather, compliance with the text form in accordance with Section 126b of the German Civil Code (BGB) is sufficient. Thereafter, the declaration must be made in a document or in another manner suitable for permanent reproduction in writing by the person

of the declarant and the conclusion of the declaration can be made recognizable by replicating the name signature or in some other way. An assertion in the sense of § 70 sentence 1 BAT can therefore also be done via an email that identifies the exhibitor and indicates the end of the text with a greeting with a name.

According to a ruling by the Fifth Senate of July 28, 2010 (- 5 AZR 521/09 -), an employer’s unconditional communication to the employee about the status of the working time account kept for him constitutes his working time balance just as uncontroversial as a wage or salary notification that is shown therein demand for money. There is therefore no longer any need for further assertion to maintain an exclusion period. This also applies if – for example due to the end of a compensation period or the closure of a working time account – the entitlement to compensatory time off turns into a claim to payment. The claim to payment is not a new claim in relation to the time credit within the meaning of the exclusion period. He merely replaces him after an exemption expires.

Those: www.bundesarbeitsgericht.de