Pregnancy labor law gehrlein colleagues

PregnancyIf an employee wants to claim protection rights for herself, she must of course mention that she is pregnant.

However, there is no obligation to report this, because according to the Maternity Protection Act she 'shall' report her circumstances.

In the interest of the pregnancy and the child, however, it is advisable to inform the employer of the pregnancy after the critical period of twelve weeks has expired.

All parties involved then have enough time to adjust to the new situation.

Protection against dismissal

The Maternity Protection Act stipulates that a woman expecting a child may not be dismissed until four months after the birth.

If you only find out you are pregnant after you have been made redundant, but were already in other circumstances on the date of termination, you have two weeks to inform your employer of your pregnancy. This provides retroactive protection against dismissal, which, by the way, also applies during the probationary period.

However, maternity protection cannot completely rule out dismissals – for example, if your employer files for insolvency or closes its business.

However, the approval of the supervisory authority is always required. Then the dismissal becomes effective only later. The regulation that protection against dismissal ceases immediately in the event of a miscarriage can be described as deplorable.

Termination is only permitted in exceptional cases

In special cases that have nothing to do with the woman's circumstance during pregnancy or her situation up to the expiration of four months after delivery, labor law only permits dismissal as an exception, for example in the case of shutdown of the business or theft.

However, in special cases, dismissal requires the approval of the highest state authority responsible for occupational health and safety.

Work that is not permitted

No work that could be harmful to the health of the mother or child must be performed during the entire pregnancy.

These are activities in which pregnant women are exposed to substances, vapors, heat, cold, wetness, vibrations or noise that are hazardous to their health. There is also a ban on work that requires frequent bending and stretching and regular lifting of loads weighing more than five kilograms.

Piecework and assembly line work are not permitted, nor is standing at work for more than four hours after the fifth month of pregnancy. During work, the employer must provide sufficient rest breaks. Night work is prohibited-. Sunday work after 8 p.m.

From the third month of pregnancy, expectant mothers are also no longer allowed to work in any means of transport (bus, cab, train, plane). Neither as a driver nor as a checker, conductor or stewardess.

The employer must offer the pregnant woman another job that she is allowed to do. If he is unable to do so, he must release her from work with full pay.

The individual employment ban

The Maternity Protection Act includes the right to an individual ban on employment if the mother or child is exposed to health risks at the workplace.

Of course, this applies in particular to expectant mothers with a high-risk pregnancy, if there is a risk of premature birth or if the cervix is weak.

In order to enforce the individual employment ban, the pregnant woman needs a medical certificate. Every practicing doctor is allowed to ie such a certificate.

In it you must explain exactly why the expectant mother should not work at all or if she is only allowed to work a limited number of hours.

The employer generally has the right to have this certificate checked again if he doubts it. If the employment ban remains in effect, the employer must continue to pay the full amount of the salary.

If the pregnant woman is assigned to another job in the company because she can no longer perform her original one, her salary may not be reduced.

Sick leave

If an expectant mother has to stay home because of flu, then a sick note is sufficient. The employer continues to pay the salary as normal.

If, however, she is unable to work for more than six weeks, the health insurance fund takes over and pays sick pay. However, this is lower than the salary.

Pregnant women should therefore try to obtain a certificate for an individual ban on employment. Then the employer must continue to pay the salary in full.

Visits to the doctor

Pregnant women are also not allowed to make their doctor's appointments during working hours. If you do not comply with this, your employer may demand that you make up the time you have missed. The only exception is doctor's appointments, for which the pregnant woman must appear sober.

Maternity protection period

Women are released from work six weeks before and eight weeks after the birth of the child (twelve weeks in the case of premature and multiple births).

Expectant mothers may not be employed for six weeks before the birth of the child, unless they expressly agree to do so. This declaration can be revoked at any time. After the birth, however, there is an absolute ban on employment.

In addition, during these so-called maternity protection periods, there is maternity pay from the health insurance fund and the employer's allowance. In most cases, this is how the income is achieved before the start of the protection period.

Entitlement to parental leave

After the birth, the entitlement to protection continues with parental leave. Entitlement to parental leave continues until the child reaches the age of three.

If one or both parents take parental leave together, their protection against dismissal is extended to the duration of the parental leave. During parental leave, the state pays parental allowance for a maximum of 14 months, of which one parent can claim a maximum of twelve months, the other a minimum of two months. Parental allowance is 65 percent of the net wage.

During parental leave, part-time work is permitted up to a maximum of 30 hours per week for each parent. This entitlement can only be refused by the employer if there are urgent operational reasons for not doing so. You are also welcome to contact our specialist lawyers for labor law in person. Find out about your rights during pregnancy.

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The law does not provide for severance pay or entitlement to severance pay per se. Rather, the employer wants to free itself from the risk of an action for protection against dismissal, which it could lose, by paying a severance payment. However, if the employee does not file an action for protection against dismissal in the first place, the employer does not have to worry in this respect either. He will not offer severance pay on his own initiative after notice has been given. It is therefore important to seek advice in good time regarding your options.

The health insurance company covers the loss of wages with children's sick pay. Since the 5. From January 1, 2021, each parent can claim this benefit for up to 20 days per year per child, single parents are entitled to 40 days per child, and Corona currently provides even more days of sick leave for children. The entitlement set out in Section 45 of the German Social Security Code (Sozialgesetzbuch V) requires certain circumstances: parents and child are covered by statutory health insurance, the child has not yet reached the age of twelve, and no other person in the household can look after the child. Privately insured persons are exempt. There are two reasons for applying for child sick pay. Case 1: The child must be cared for at home because the daycare center or school is closing due to Corona or the daycare center is restricting the care offered. This also applies if the parents work or could work in the home office. Parents need an appropriate certificate from school or nursery management, which they submit to the health insurance company. Case 2: The child has to be cared for at home because he/she is ill. The parents need a confirmation from the doctor that the care of the child is necessary. The certificate should be ied on the first day of illness. On the same day the employer is informed about the absence. The health insurance company receives the certificate, the employer receives a copy. This must be submitted to the employer by the working day following the third day of illness at the latest. He then sends the health insurance company a certificate of earnings. This transfers the children's sick pay.

Employers are usually, but not always, prepared to pay a severance payment in the event of unlawful termination in order to prevent an action for unfair dismissal, i.e. a lawsuit against the termination. If the circumstances suggest that a dismissal is unlawful and the employee can also demonstrate this, employers can regularly be persuaded that they would lose a dismissal protection case. To avoid this, a severance payment can regularly be negotiated.

If you have filed an action for protection against dismissal, but already have a new job in prospect, there is legally nothing to stop you from taking the new job – however, it can be a negotiating disadvantage with regard to the amount of the severance payment. So avoid that your old employer gets to know about it in order not to put yourself in a worse position in court.

The insolvency of a company does not necessarily mean that severance pay is no longer possible. It is important to note: is your claim to severance pay created BEFORE or AFTER the opening of insolvency proceedings? If before that, your chances are bad. Your claim will be equalized with all other claims of other creditors – probably you will only receive a share later on. If you have been promised severance pay after the opening of insolvency proceedings, the insolvency administrator is obligated to pay it out.

A draft law for a tax allowance is on its way – it is initially to be limited to two years A tax allowance of 5 euros per day in the home office is being discussed. The upper limit should be 600€, which corresponds to 120 home office days.

The Federal Employment Agency and the Federal Ministries of Labor and Social Affairs, Family Affairs, Senior Citizens, Women and Youth, and Health agree that pregnant women who are subject to an employment ban are not entitled to short-time allowance. For pregnant women, priority is given to the maternity pay or. Maternity benefit. To pay the employer's contribution. There is no loss of work with loss of pay due to these benefits. Thus, the requirements for short-time allowance are not met.

Yes. Accident insurance under the General Social Insurance Act (ASVG) also covers accidents at work that occur in a temporal and causal connection with the home office employment giving rise to the insurance. This also applies to commuting accidents in connection with the home office.

Yes, because it must be clarified whether an action for protection against dismissal must be filed. It may make sense to accept the termination, but it may also be necessary to take action against the termination because you may be threatened with a blocking period from the employment office.

In general, it can be said that Termination agreement also without severance pay, but no severance pay without termination agreement. Because: in the termination agreement, both parties will specify the exact amount of the severance payment and, above all, the employer will ensure that the employee is equally committed to waiving the action for protection against dismissal. A termination agreement is therefore intended to provide security for both parties. Basically hit employees. Employer here in cooperation a decision. In this case, everyone is looking out for their own interests. Therefore, you should thoroughly check documents that are presented to you for signature for advantages and disadvantages. An experienced labor lawyer can help here.

This not necessarily. But the law on warnings and dismissals is actually very difficult to understand due to its complex requirements, and this is of course especially true for legal laypersons. For this reason, warnings very often prove to be significant stumbling blocks for subsequent dismissals in legal proceedings. Because if the conduct in breach of duty has not been duly warned beforehand, no lawful termination can be based on this in the event of a repetition. In cases of doubt, it is therefore advisable to seek professional advice before handing over a warning to the employee.

In principle, the employer is required to work towards the utilization of any remaining vacation entitlements before applying for KUG. If short-time work is imminent, however, the employer may not in principle unilaterally order leave if the employees' wishes for leave conflict with this. In particular, short-time work does not constitute an operational ie within the meaning of § 7 (2). 1 BUrlG, which can be held against the individual vacation wishes of the employees. However, employees could avoid the loss of earnings due to short-time work by taking leave. Therefore, it is in any case possible to convince employees of the merits of the leave.

In principle, the doctor should not certify incapacity for work for a period prior to the first doctor's visit. Backdating to a period prior to the start of treatment is only permitted as an exception, and the backdating period should not exceed two days.

Temporary employees can also receive short-time allowance according to § 98 SGB III. However, the cases in which the fixed-term contract expires before the short-time work ends are problematic. But even in this case, there is at least the possibility of continuation, so that short-time work may be possible in this case as well.

In the case of a permanent employment relationship, the employee may not be dismissed in principle. Protection against dismissal begins with the onset of pregnancy and lasts until 4 months after childbirth, or. if you take a maternity leave up to 4 weeks after the end of the maternity leave . The dismissal of an expectant mother is only permitted for special reasons. Only possible with the approval of the labor court.

Work is only permitted at the weekend (Saturday after 1 p.m. and Sunday) in the home office – as well as in the company – if there is an exception according to the Arbeitsruhegesetz, the Arbeitsruhegesetz-Verordnung or a collective agreement.

As a rule, employees should have at least one day off per week due to the prohibition of work on Sundays and public holidays. In areas where work on Sundays and public holidays is permitted, however, blocks of more than six working days in succession may well occur. However, the substitute rest days for work on Sundays and public holidays must be observed: for work on Sundays within a period of two weeks including the day of employment and for work on public holidays within eight weeks.

Yes, because a sick leave is not a prohibition of work. The doctor only states the expected duration of incapacity for work on the certificate. If you feel fit to return to work sooner, you may go to work. In that case, however, you should rather inform your boss about the medical diagnosis so that he can assess risks. He has a duty of care to you and also to your colleagues: Anyone who goes to work sick risks infecting colleagues and not recovering sufficiently himself. If it is clear to your employer that you are unable to perform, he should send you home. Otherwise, he may be jointly liable in the event of damage. The protection of the statutory accident insurance, on the other hand, is generally not endangered if you are on sick leave. There is no such thing as a "sick note. However, it does not hurt to have a doctor evaluate whether you are really ready to return to work. If you go back to work against the doctor's advice and then relapse and are absent for longer than necessary, this may even constitute a breach of employment contract obligations.

Yes. According to Section 616 of the German Civil Code, you may leave early or be absent from work with pay if you are forced to do so for personal reasons that are not your fault and are unavoidable. This includes the necessary care of a sick child. The parental duty of care takes precedence over the duty to work, but only if you are only absent for a "relatively insignificant time". This is usually up to five days if the child to be cared for is under twelve years of age. However, the remuneration under Section 616 of the Civil Code may also be excluded by the employment or collective bargaining agreement.

The recipient of the parental allowance may work a maximum of 32 hours per week. In the basic parental allowance, however, the income is offset against the parental allowance, so that it is correspondingly lower. However, due to the basic amount, parents are entitled to 300 euros basic parental allowance in any case. In contrast, part-time work is encouraged in ElterngeldPlus: Parents receive only half the amount of parental allowance, but for twice the period.

If the deadline is too short for no reason, a reasonable period for your response will be set in motion. You can point this out to the person iing the warning and inform him/her that you will be informed within a reasonable period of time ( z.B. one week) will respond. It is best to agree on a response time with the warning party. If you do not react, you run the risk of receiving an injunction against you.

A blocking period is usually three months and, roughly speaking, always threatens if the employee is to blame for the loss of his or her job. For severance agreements, this is usually affirmative because the employee chooses to sever the employment relationship voluntarily. In the case of an action for protection against dismissal and subsequent settlement, you are only threatened with the imposition of a blocking period by the responsible employment office if the settlement refers to a termination for reasons of conduct or other reasons that specifically assign the blame for the loss of the job to the employee.

No. According to the legal regulations on home office, there is no right to enter private households of employees working in home office.

Non-profit companies such as associations, schools, daycare centers or cultural businesses (z.B. theaters) can apply for short-time allowance under the Corona pandemic on the merits of the case.

The prerequisite for receiving short-time allowance is, in principle, that the employee continues employment subject to compulsory insurance after the start of the work stoppage, takes up employment for compelling reasons or takes up employment following the end of his or her vocational training relationship. The decisive factor is whether the employment is subject to social insurance contributions. In this case, only the obligation to be insured in the unemployment insurance according to the Social Code Book III is relevant. Accordingly, the following are exempt from short-time work: Employees who have reached the age relevant for the standard old-age pension, employees who are professionally engaged in a non-permanent occupation, marginally employed persons and working students.

No, the prerequisite for short-time allowance is that your employment relationship has not been terminated. The employee's termination of employment also voids the entitlement. Depending on the structure of the agreement on short-time work, however, the employee may continue to be remunerated on the basis of the reduced working hours during short-time work, if applicable. supplemented by a fictitious short-time allowance.

If a contract is limited in time without a material reason, it may run for a maximum of two years. Exceptions apply in newly established companies. For some employees from the age of 52. Birthday. If newly established, time limits of up to four years are permissible. Within these four years, the contract can be extended several times without giving reasons. By the way, a company is considered as "newly established" in the first four years. Based on this rule, start-ups can also hire a new employee on the last day of the fourth year. Limit one's contract for four years without stating reasons. Employees who are over 52 years of age at the start of the contract and have already been unemployed for four months can be employed on a fixed-term basis for up to five years without giving reasons.

In the home office, the provisions of the Working Hours Act and the Rest Period Act apply in the same way as when working at the company on site.

If you have other children living in your household, you may receive a supplement to your parental allowance, the so-called "sibling bonus". Your parental allowance is then increased by 10%, at least by 75 euros per month for basic parental allowance or 37.50 euros per month for parental allowance plus.

The employee has extended notification obligations in the case of illnesses abroad. He is obliged to inform the employer about the incapacity for work, its expected duration and the address at the place of stay in the fastest possible way of transmission at the beginning of the incapacity for work abroad. In addition, the employee must also inform the health insurance fund of the illness. Inform them immediately of the expected duration of the pregnancy.

There are numerous circumstances in which a warning is actually dispensable. Outside the scope of the Dismissal Protection Act, for example, especially during the probationary period, the requirement for a warning does not apply because the reasons for the dismissal are not important. Also, in the event of termination for operational reasons, a warning is not required, as such termination is solely within the employer's sphere of influence. In the case of termination for personal reasons, a warning is also generally not required because an employee's illness does not usually result from reproachable misconduct. Finally, a warning is unnecessary in the case of very serious breaches of duty where the employee can readily recognize the unlawfulness of his behavior himself and where acceptance of the employee's behavior is obviously impossible. These are in particular cases in which termination without notice is also justified, for example in the case of property offences or if the employee persistently and intransigently continues his breach of contract, or if sustained insults or. Assault on the part of the employee. The parental allowance is paid per birth. Not paid per child. However, in the case of the birth of twins, parents receive a multiple child allowance of 300 euros per multiple child.

No, in principle a severance payment does not entail a blocking period. A blocking period may result for other reasons, in particular in the case of self-termination or a termination agreement. Problems also arise if the notice period is shortened to the detriment of the employee as part of a termination agreement and – in return, so to speak – the severance pay is increased.

Most of the provisions of the Employee Protection Act including regulations also apply in the home office. These include, for example, regulations on workplace evaluation, information and instruction, or preventive service support. Workplace-related occupational health and safety regulations do not apply to work in the home office. Nevertheless, it is important that ies such as z.B. Exposure to be considered in workplace evaluation. Do employers provide technical work equipment (e.g., a computer) to employees?.B. If the employer provides the employees with laptops and work tables and chairs for the home office, they must also ensure that these are ergonomically designed and comply with the state of the art.

The Maternity Protection Act applies to all employees regardless of their level of employment (full or part-time) or earnings (z.B. minor employment relationship), even z.B. for federal employees, apprentices, home workers. It does not apply to female employees in agriculture. For special training relationships.

Yes, if nothing to the contrary has been agreed in the home office agreement. In the case of such an agreement, as in the case of any individual working time agreement, the Working Time Act, the collective agreement applicable to the company and existing company agreements on working time must be observed. If a collective agreement applicable to the company provides for regulations on home office with regard to working hours, these must also be observed.

"Yes, the claim is legally standardized in §§ 630 BGB, 109 GewO. In particular, the employee may request a sog. Demand a qualified reference that covers performance and conduct in the employment relationship. The duration of the employment relationship is not decisive here; even in the case of a very short period of employment, the employee is entitled to a qualified certificate. If, on the other hand, the employee only requests a so-called. simple certificate on the nature and duration of work without description of performance and behavior and the employer ies it, the claim is extinguished. The employee can then no longer demand. An interim report may be ied at any time if the employee has a legitimate interest (z. B. departmental or managerial changes, intention to apply for a job) can be demanded. According to § 630 BGB, the obligation to provide a reference only applies to so-called permanent employment relationships. Freelancers and other self-employed persons are therefore generally not entitled to a certificate, also because they are not bound by instructions."

No, contrary to popular belief, there is (with exceptions, z.B. social compensation plan), there is no entitlement to severance pay under German labor law

No. Home office must always be based on an agreement between the parties to the employment contract.

There is no entitlement to home office. Previously, § 2 para. 4 SARS-CoV-2 Occupational Health and Safety Ordinance a.F. and § 28 b para. 7 IfSG, however, stipulates that employers are obliged to offer home office work to employees in the case of office work or comparable activities. This obligation to offer shall expire at the end of 30. June 2021 will no longer apply (s. § 28 b Abs. 10 IfSG). Company-related contacts and the simultaneous use of rooms by several persons must, however, be kept to the necessary minimum in accordance with § 3 of the SARS-CoV-2 occupational health and safety regulation. Working in a home office can continue to make important contributions in this regard. If an employer has permitted his employee to work in a home office during the pandemic, he may also change this instruction again for operational reasons (so LAG Munich, Urt. v. 26.8.2021 – 3 SaGa 13/21).

Yes, the follow-up certificate must be ied no later than on the working day following the last day of the previous sickness certificate. In order to receive sick pay in the event of a long-term illness, you must be able to document your incapacity for work without any gaps. It is best to visit the doctor again on the last day of your sick leave. How to be on the safe side. If you receive sick pay, any certificate of incapacity for work must be submitted to your health insurance company within one week. Otherwise, you will not receive sick pay until the certificate is received by your health insurance fund.

Yes, because on the day of the medical sick leave ends. According to section 9 of the Federal Leave Act, you will be credited with the days off. However, you may not attach it to the vacation without agreement.

In cases of absence from work through no fault of the employee within the meaning of Section 616 of the German Civil Code (BGB), the employee has a claim to absence from work and at the same time retains his claim to remuneration. The prerequisite is the existence of a personal obstacle to performance. These can be special family events, e.g., a child's birth.B. own wedding or that of the children, the birth of the wife or the partner living in the domestic community, funerals in the close family circle, but also personal misfortunes such as z.B. Burglary, fire, traffic accidents without fault.

In principle, no deadlines need to be observed for iing a warning, since according to case law there is no preclusion period. Nevertheless, it is advisable to give notice of a breach of duty as soon as possible, at least within four weeks of becoming aware of the facts. This is because the right to ie a warning may well be forfeited if there is too great a lapse of time between the incident and the warning, during which the employee was entitled to expect that the potential warning incident would have no consequences.

Employees are liable under the provisions of the Employee Liability Act (Dienstnehmerhaftpflichtgesetz, DHG), which provide for a limitation of the scope of liability. Accordingly, there is no liability and no obligation to pay compensation for damage caused to the employer by excusable misconduct in the performance of work. The employee shall be liable for any damage caused by negligence. the employee is generally liable. However, in the event of legal proceedings, there is a judicial right of moderation. For damage caused intentionally, the general rules on damages apply.

As a rule, there is no provision for an extension. With regard to a shorter notice period than the standard two weeks, the following applies: Yes, indeed – but only if a collective agreement is involved. In this case, shorter notice periods may have been agreed in individual contracts. This is the case, for example, if there is a temporary temporary employment relationship.

No. Although you do not have to pay social security contributions on the severance payment, it is subject to wage tax. This is to be withheld and paid by the employer. The u.U. abrupt increase in annual income may result in a higher tax rate. In order to take account of the one-off nature, the legislator has opted for the quintuple rule in § 34 para. 1 S. 2 of the German Income Tax Act (EStG).

No, the law does not stipulate a probationary period at the start of a new employment relationship. Employers can therefore decide for themselves whether or not to agree a probationary period in the employment contract.

It follows from the principle of proportionality that only significant and objectively actual breaches of duty can be warned, while petty cases cannot be warned. If, for example. B. a warning is ied to an employee who is five minutes late for work in the morning after a ten-year period of employment without any complaints, such a warning will probably not be upheld by a labor court, as it is likely to be completely disproportionate. The situation is different, of course, if an employee is permanently late for work. Then such a sustained breach of duty may very well be subject to a warning notice.

No, the limitation of the term of an employment contract does not require an objective reason if the employment contract or its maximum three extensions does not exceed the total duration of two years and there has never been an employment relationship between the employee and the employer before. Furthermore, since 1. On January 1, 2004, a new provision was introduced for start-ups: by inserting Para. 2a in § 14 Part-Time and Fixed-term Employment Act (TzBfG), fixed-term employment of employees was made easier for start-ups. Accordingly, in the first four years after the establishment of a company, the calendar-based limitation of an employment contract is permissible up to a duration of four years without the existence of an objective reason. Up to this total period of four years, the multiple extension of an employment contract with a fixed term is also permissible. However, this does not apply to start-ups in connection with the legal restructuring of companies and corporations. On 1. May 2007, there is another new regulation for older employees that must be observed: According to § 14 para. 3 TzBfG, it is possible to set a fixed-term employment contract for a period of up to five years without an objective reason, if the employee has not yet reached the age of 52. If the employee has reached the age of 60 and has been unemployed for at least four months within the meaning of Section 119 (1) immediately prior to the start of the fixed-term employment relationship, the employer shall be entitled to terminate the employment relationship. 1 no. 1 Third Social Code (SGB III), have received transfer short-time allowance or have participated in a publicly funded employment measure in accordance with SGB II or SGB III. Up to a total duration of five years, multiple extensions of the employment contract are also permissible.

Working in a home office requires an individual contractual basis in any case. However, company-wide framework conditions for the home office can be regulated in a voluntary works agreement, in particular regulations concerning the provision of work equipment and its private use or the reimbursement of expenses and outlays in the home office.

The employer may order short-time work if there is a basis for this in the employment contract, in a works agreement or in a collective agreement. The introduction of short-time work is also subject to co-determination by the works council.

No. Short-time work cannot be ordered unilaterally by the employer without further ado. The arrangement of short-time work is not covered by the employer's right of direction. Short-time work must therefore be introduced in a way that is permissible under labor law, by collective agreement, by works agreement, by short-time work clause in the employment contract or by individual agreement with the employees. If there is no works council and no collective agreement on short-time work, all employees affected by the short-time work must agree to it. There must be an agreement between the employer and its affected employees on the percentage by which their respective working hours are to be reduced. This agreement should be recorded in writing.

Yes. Like any agreement, the home office agreement may be concluded for a limited period of time.

In the future, the agreement can be terminated by either party to the employment contract for good cause by giving one month's notice to the last day of a calendar month. Otherwise, the home office agreement may contain termination provisions that allow for termination, or it may be terminated by mutual agreement between the parties to the agreement.

Notification of short-time work does not generally preclude new employment. Unproblematic is z.B. the case if short-time work is only being carried out in one department of the company and a new employee is to be hired in another department of the company. However, an employee can also be hired in the department affected by short-time work and even receive short-time allowance if there is a compelling reason for hiring him or her. Is z.B. an employee with special qualifications has been ill for a long time or has left, and no other employee has such qualifications, he or she may be replaced by a new hire. A newly hired employee can also receive short-time allowance if short-time work was not foreseeable when the contract was concluded. In addition, trainees can be taken on by their training company without any restrictions.

Yes, namely if there is a longer period of time between the warning and a new breach of contract with equivalent facts. How long such a period must be is a question of the individual case. As a rule, however, this is possible after ca. one to two years (in the case of minor violations probably also after six months).

The tax office usually only recognizes costs for home offices if it can be shown that one room of the home is used primarily as an office.

No. Fixed-term employment contracts must be in writing. Each party to the contract must therefore receive a copy of the contract signed by the other party. If the written form is not complied with, they are deemed to be employment contracts for an indefinite period of time.

Ordinary termination of an employment contract is only possible if this has been expressly agreed in the employment contract. Otherwise, ordinary termination is excluded during a fixed-term employment contract. The right of extraordinary termination for cause remains in effect.

It also applies to expectant mothers that the leave must be agreed with the employer. Aliquotization of leave (consideration of maternity leave) may not be carried out if the outstanding leave is used up before the protection period prior to childbirth.

There is no requirement as to the manner in which you must report sick on the first day of illness. The main thing is that the notice of sickness is given without delay. Reaches the employer also really. In principle, you can also write an email, SMS or a message via a messenger service such as Whatsapp. However, you should then demand a reply to make sure that the message with your sick note really arrived. The safest way is to pick up the phone.

One should always consider whether or not to take action against a termination and, if so, to what extent. Note, however, that an action for protection against dismissal must be filed within three weeks of receipt of the notice of termination, otherwise no further action can be taken against it. It is a preclusive period. This means that an action for protection against dismissal filed after this deadline has no chance of success simply because the three-week deadline was missed, even if the dismissal was illegal. No. Work in the home office is to be agreed between the employee. To be agreed with the employer; this should now be done in writing. Work in the home office is to be agreed between the employee. the employer; this should now be done in writing. An agreement can also be concluded electronically (company IT tools, cell phone signature, e-mail).

Such so-called collective warnings, in which the employer presents several warning facts at the same time, are rather problematic. Because if even one of the accusations listed here proves to be unfounded, the entire warning must be removed from the personnel file at the employee's request. Therefore, to be on the safe side, the respective breaches of duty should be warned in several separate letters.

No. Employees who have already reached the relevant age for receiving a pension due to old age (standard retirement age), or who are actually already receiving a pension due to old age, are not entitled to short-time allowances.

The training company must first try to continue the training z.B. To continue to be able to work by changing the training schedule. If this is not possible and the trainee cannot be trained any further, he/she must still be given sick leave for 6 weeks – i.e. 30 working days in the case of a 5-day week – in accordance with the following provisions. § 19 para. I no. 2a BBiG the remuneration is to be continued to be paid by the training company. Vocational school periods are not taken into account for the 30 days. If the short-time work for min. If the training period is interrupted for 3 months, the 30 working days of continued payment by the training company start again. After the 30 working days the trainee can be sent to short-time work and receive short-time allowance. Under certain circumstances, however, it may be more favorable instead of short-time work for trainees to. Trainers to claim support under the federal program "Securing Training Places. Under certain conditions, this program can provide funding in the amount of 75% of the gross trainee compensation and, starting in March 2021, funding in the amount of 50% of the trainer compensation (max. 4.000 euros per month) must be made.

With the extension of a fixed-term contract, no changes may be made to the details of the contract. This is taken from the ruling of the Berlin-Brandenburg Regional Labor Court on 28.09.2010. Accordingly, fixed-term contracts without a basis in fact with a maximum duration of up to two years can only be extended three times. If the details of the contract are changed in the course of an extension, a new employment contract is automatically created. This is only legally valid if it is based on a factual reason. If contractual details in the fixed-term contract are to be changed, this should be done during the term of the contract and not in the context of the extension.

Senior executives can also receive short-time allowance; it depends solely on their status as employees. However, these are not covered by a works agreement on short-time working, as the works council does not have a mandate for senior executives. Short-time working would therefore have to be agreed with these employees on an individual basis.

The loss of working hours must be notified in writing to the employment agency, and this notification must already be accompanied by the labor law basis for the introduction of short-time work. In the employment contract or. However, a company agreement on the introduction of short-time work already specifies an exact date for the start of short-time work. This can also be complied with without the employment agency having made its decision in principle following the notification. The entitlement to short-time allowance exists from the beginning of the month in which the notification was made.

an. It should be noted, however, that certain measures require the consent of the works council in any case. Thus, for control measures that affect human dignity, the consent of the works council – or the works council – is required. if there is no works council, of the employee – necessary. The use of technical systems for recording employees' personal data is also subject to the consent of the works council, provided that the use of the data goes beyond the legally required obligations. General rules of order (including duties of conduct) can be regulated by means of an enforceable works agreement. A working time agreement can contain special regulations for home office or regulate uniform working time regulations for on-site and home office employment. This applies irrespective of the individual agreement, any company agreement or collective agreement regulations.

As a rule, a warning does not require a hearing of the works council – unless required by collective bargaining law – nor of the employee. Nevertheless, in some cases, particularly in the case of long-serving employees, prior consultation is recommended if the warning is to be ied on the basis of a customer complaint, for example, on which the employee can justify himself or herself. Under certain circumstances, the facts of the case may turn out to be quite different or the accusation may turn out to be unjustified. If a warning has nevertheless been ied and a legal dispute arises over the justification of the warning, this naturally has an unfavorable effect on the employer's position. For the latter bears the burden of proof-. Burden of proof for the violations of duties for which warnings have been ied.

Short-time working does not have to be introduced throughout the entire company. Working hours may also be reduced in individual company departments only. Within these companies/departments affected by short-time work, working hours do not have to be reduced by the same percentage for all employees. If some employees are needed more urgently than others, they may work more hours than others during the short-time working period. It is important that the labor law requirements for short-time work are met. In addition, the general principle of equal treatment must also be observed in the case of short-time work. There must be a factual – non-discriminatory – reason for the different distribution of short-time work.

No, he does not have to. Time off is for the employee's recovery. The employer has no claim on the employee's labor outside of working hours.

As a rule not. The arance of the proper authorization is sufficient in the context of warnings with attached cease-and-desist letter and declaration of obligation. Especially in urgent cases, it will be difficult to obtain an original power of attorney beforehand, which would only be an aggravating hassle for the person iing the warning. If you want to be absolutely sure that the lawyer is really acting as the authorized party, you can inform the lawyer that you make the submission of a declaration of discontinuance and commitment dependent on the submission of an original power of attorney. However, you should also hand it in if you had promised to do so beforehand.

You do not necessarily have to take parental leave to receive parental benefits. However, you may not work more than 32 hours per week as long as you receive parental allowance. Many employees therefore have to reduce their working hours in order to receive parental allowance, and use parental leave to do so. Tip: Schedule your parental leave so that all of the months of your life in which you receive parental benefits are completely within the parental leave period.

If you work on weekends, please note that you are entitled to at least 15 non-working Sundays per year, § 11 ArbZG (German Work Time Act). Only not if Sunday work is agreed, for example according to collective agreements. Exceptions are vital work (z.B. in hospital) or work that cannot be postponed (e.B. trade fair appearance on a Sunday).

No, such information is private. Also the doctor does not note the diagnosis on the copy of the sick note intended for the employer. It is only on the copies for the health insurance and for you.

Yes, it must go to the employer and the cashier. This is mandatory. If it does not arrive within a week, you risk your entitlement to sick pay if the continued payment of wages ends after the first six weeks of incapacity for work. It is important to inform the health insurance fund immediately, especially in the case of serious illnesses, so that sick pay can be paid immediately after the six weeks. It is often possible by e-mail or via the health insurance company homepage. If you send the sick note by mail, you should do it by registered mail. Do not rely on the doctor to send it. However, if he does so and uses pre-addressed envelopes provided by the health insurance fund, any loss in the mail is borne by the fund (Federal Social Court, Az. B 3 KR 6/18 R).

It depends. In the case of an ordinary termination with due notice, no prior warning must have been given. However, if it is a termination for behavioral reasons, the employer must usually ie a warning to the employee in advance. In our advice section you will find more information about the different types of dismissal, the action for unfair dismissal, about the warning and on the subject of protection against dismissal.

It depends on what you are ill with. You must avoid activities that hinder your recovery, but you are allowed to do everything that contributes to it. If you have broken your hand, for example, you may not be able to do your job, but you can still go for a walk, go shopping and to the cinema. Even a leave of absence is possible in case of illness, if it does not interfere with recovery. You should inform your employer in advance in order to avoid misunderstandings. If you are already receiving sick pay, the health insurance fund must approve the leave beforehand. It is obligated to do so if there is nothing to be said against the trip for medical reasons. Depending on the illness, you may even be allowed to play sports. Participate in competitions. The Stuttgart Labor Court declared the dismissal of an employee invalid. The had participated in a 53-kilometer ultra-cross-country race not even two weeks after a fracture of the left shoulder blade. Beforehand, however, he had asked the doctor. The had given the green light.

The employment agency has already indicated that it accepts very concisely worded agreements with employees that are low on detail. From the point of view of labor law, however, caution is advised. The agreement must contain specific details of which employees are to go on short-time working, for how long and to what extent. The arrangement must be transparent for the employee.

No, not necessarily. Only if it is a fixed term for a specific purpose, the reason for the fixed term must be formulated in writing. A time period is then not necessary. In all other cases, at least the fixed-term period, the so-called fixed-term agreement, must be recorded in writing. However, the contents of the employment contract can then also be agreed verbally.

Yes, you should not take a warning lightly. At the very least, you should consult an expert advisor or lawyer who will investigate whether or to what extent the warning is justified. We will be happy to advise you on this. Members of associations ( z.B. IHK, chambers of trade or chambers of architects) can first ask the legal department there. However, the response time is usually short. If no meeting can be arranged at short notice, it is recommended that a lawyer familiar with the matter be consulted.

Yes. If the activity is predominantly carried out at home, records may also be kept only for the duration of the daily working time if this has been agreed upon.

a, as soon as the temporary workers are also affected by the short-time work, they have to be reported by the hiring company. Please check the contract with the hiring company as to when the hiring period can end. Until 31.03.In 2022, temporary workers in companies will be able to receive short-time allowances. From 01.04.In 2022, temporary workers will no longer be eligible for short-time benefits.

If the employer pays the employee a subsidy, either voluntarily or on the basis of a collective agreement, to top up the short-time allowance, social security contributions are only payable on this under certain conditions. If the employer's subsidy and the short-time allowance together comprise more than 80 percent of the lost pay due to the short-time work, social insurance contributions must be paid on the part of the subsidy that exceeds this 80 percent. These are to be paid by employer. employee jointly. As long as the 80 percent is not exceeded, no contributions have to be made. Limited until 31.12.In 2021, the benefits will also remain tax-free under the same conditions. An extension of this exemption (§ 3 No. 28a EStG) has not yet been made.

No, this is often not enough. You will receive three copies of the certificate: One for you, one for your employer and one for your health insurance company. The carbon copy for the employer must be received by the boss on the working day following the third day of incapacity for work. Sometimes it is not so easy to determine the right day for this: If you work from Monday to Friday, for example, and fall ill on a Tuesday, then Thursday is the third day of your incapacity for work. The medical certificate must be received by the employer on Friday. If you become ill on Thursday, Saturday is considered to be the third day of illness. You must see a doctor no later than the following Monday, your next normal working day, and immediately submit the certificate to your boss. Mail a photo or scan of the certificate to make sure it arrives. It's not enough to put the certificate in the mail on Monday.

A bonus can also be paid for special services during short-time working. However, individual employees must not be unfairly disadvantaged; the general principle of equal treatment remains applicable. As a one-time payment, this premium is not taken into account when calculating short-time allowance.

Termination with an offer of severance pay in accordance with § 1a KschG has the advantage for employees that they are certain to receive severance pay if they accept the dismissal. In addition, there is no lock-up period. It is not necessary to accept such an offer.

Since work on Sundays and public holidays should not be the rule, each employee is entitled to a compensatory rest day for work on such a day. Thus, Sunday work, no matter how long the work assignment lasted, must be compensated by a substitute rest day within two weeks, and the substitute rest day for holiday work must be granted within eight weeks. The substitute rest day for work on Sundays and holidays must be attached to an eleven-hour rest period and can be any non-working weekday, including a Saturday. It is also important that each employee may not be employed on at least 15 Sundays per year

In the case of a dismissal made by yourself to the employer, you are not entitled to a severance payment. In any case, you must bear in mind that if you terminate your employment yourself or sign a termination agreement without cause, this will generally result in a blocking period for unemployment benefits.

It depends on whether your contract is limited by a reason or only by a date. The rule you are thinking of refers to contracts that are limited in time only – without a material reason: The Act on Part-Time Work and Fixed-term Employment Contracts (TzBfG) states that a "calendar-based" fixed-term contract is only permissible three times in a row – and only within two years. In practice, this means that a contract that is limited without reason may not run for longer than two years. If it is shorter, for example one year, it may be extended two more times, but only so that the total duration does not exceed two years. A permissible variant would be this: The first contract runs for twelve months, followed by an eight-month extension and another four-month extension. If contracts are limited by an objective reason – such as a replacement for illness – more than three in a row are also permitted. Such contracts predominate in practice.

Statutorily insured persons are entitled to sick pay if they are incapacitated for work and are no longer paid (i.e. after six weeks of illness).

During a break, the employee is free to decide where to stay and he/she does not have to be reachable. Agreements between parties to collective bargaining agreements are an exception: For example, hospital employees on night duty can spend their breaks in the ward room if the breaks are at least 15 minutes long without interruption.

In principle, the pregnancy must be disclosed to the employer as soon as you become aware of it.

Parental allowance

What is the partnership bonus?

In general, there are three types of parental allowance: Basiselterngeld, ElterngeldPlus and Partnerschaftsbonus. You can also combine these variants. The partnership bonus is intended to support parents who divide their family and professional responsibilities between them by giving both parents 4 additional months of ElterngeldPlus each in 4 consecutive months of life. In order to receive these additional months, you must work 25-30 hours per week in 4 consecutive months of the child's life. It is not necessary that you work exactly 25-30 hours in every single week. What is important is how many hours per week you work on average per month. Overtime is included. Minus hours deducted. Days on which your earn money but do not work (z.B. Vacation days and public holidays) are considered working days. You can also take advantage of this offer if you and the other parent are raising your child separately. If you are a single parent, you can also use the partnership bonus alone. Then it is sufficient if only you work 25-30 hours per week in 4 consecutive months of life. Note: If you receive the partnership bonus, but the requirements cannot be met by you or the other parent, then the amounts already paid out will be reclaimed by both parents.

Parental benefit

How am I covered by health insurance while I receive parental allowance??

While you receive parental allowance, you remain as insured as before. This means: If you were previously covered by statutory health insurance, you will remain covered by statutory health insurance. If you previously had private health insurance, you will remain covered by private health insurance. However, the contributions to your health insurance may change. Please consult your health insurance company before applying for parental benefits.

Pregnancy / maternity protection

Does the maternity protection law apply to me??

The Maternity Protection Act applies to all employees regardless of their level of employment (full or part-time) or earnings (z.B. marginal employment), including z.B. for federal employees, apprentices, home workers. It does not apply to female employees in agriculture. For special training conditions.

Parental allowance

How long can I receive parental allowance?

You can receive parental allowance from the birth of your child. It is paid on a monthly basis, but not for calendar months, but for the so-called "months of life" of your child. Their start date depends on the day your child is born. Example: If your child is born on 15. February is born, then the 1. Month of life from 15. February until 14. March, the 2. Month of life from 15. March until 14. April, the 3. Month of life from 15. April to 14. May and so on. How long you receive parental allowance depends on whether you choose basic parental allowance or parental allowance plus, or a combination of both, and whether you want to take advantage of the partnership bonus: You can receive basic parental allowance for up to 12 months of life. If both partners claim parental benefit and at least one of you has less income after the birth than before, even for up to 14 months. These 2 additional months are called "partner months". You can get the partner months even if you are a single parent. To find out when you are considered a single parent, see How much parental benefit do single parents get?? You can receive ElterngeldPlus for twice as long as basic parental allowance: Instead of one month of life with basic parental allowance, you can also opt for two months of life with parental allowancePlus. This may even give you more parental benefit overall. More about the amount of parental allowance. As a partnership bonus, you and the other parent can each get up to 4 additional months of ElterngeldPlus if you both work part-time at the same time. You can also receive the partnership bonus if you are a single parent. To find out when you are considered a single parent, see How much parental benefit do single parents get?? You can divide the parental benefit months between you. You can apply for parental allowance at the same time or alternately. In each month of life in which you both receive parental allowance at the same time, you will use up 2 months of parental allowance together. You can either receive the parental allowance in one go or interrupt the parental allowance payment. Continue later or alternate with your partner. The following restrictions apply: You can only receive basic parental allowance in the first 14 months of your life. After the age of 14. In the second month of life, you can only receive ElterngeldPlus or Partnerschaftsbonus – up to a maximum of 32 months. month of life, i.e.: maximum until your child is 2 years and 8 months old. You are then no longer allowed to interrupt the payment. If the other parent also applies for parental allowance, you can apply for parental allowance after the 14th month of pregnancy. Alternate between the two products during the first month of life. However, if after the age of 14. If there is a month of life in which you both do not receive ElterngeldPlus, you will not be able to receive it after that – even if you still have months left. If you are the mother of the child, the months of life in which you receive maternity pay or other maternity benefits for the same child count as months in which you receive basic parental benefits. This means: You use up these months as basic parental allowance months. It does not matter whether you actually apply for basic parental allowance for these months or not. In these months you can get neither ElterngeldPlus nor the partnership bonus. The other parent is free to decide during this time which variant of the parental allowance he or she would like to receive. Months in which you receive daily sickness benefits from your private health insurance during maternity leave also count as basic parental benefit months.

Parental allowance

Do I have to take parental leave in order to receive parental benefits?

You do not necessarily have to take parental leave to receive parental allowance. However, you may not work more than 32 hours per week as long as you receive parental allowance. Many employees must therefore reduce their working hours in order to receive parental allowance, and use parental leave for this purpose. Tip: Schedule your parental leave so that all of the months of life in which you receive parental allowance are completely within the parental leave period.

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