Vacation rest vacation compensation

As an employee, you are entitled to recreational leave each year, which cannot be excluded by the employer. What this entitlement is based on, how many vacation days you are actually entitled to and what happens to such vacation entitlements after a termination, you will find out below.

You have received a notice of termination or a termination agreement?

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How many vacation days do employees have per calendar year?

The number of vacation days you are entitled to can usually be found in your employment contract or in a collective bargaining agreement that applies to the employment relationship (z.B. Collective Agreement for the Metal and Electrical Industry in Hesse, Framework Collective Agreement for Building Cleaning, Collective Agreement for Temporary Employment, TVoD).

How much is the minimum leave?

The Federal Vacation Act sets a minimum standard, which may not be undercut by your employment contract.

The Federal Vacation Act stipulates that every employee is entitled to at least 24 working days of vacation per calendar year (§ 3 paragraph 1 BUrlG). This vacation entitlement is calculated on the basis of a 6-day week (§ 3 Para. 2 BUrlG). However, employees usually work for the employer only five days per week (i.d.R. from Mon- Fri.). In this case, the statutory vacation entitlement is 20 working days.

The number of vacation days is therefore directly dependent on how many days you work in a week. In total, the vacation days of your statutory vacation entitlement must allow you to take 4 weeks off per year.

Your employment contract or collective agreements may contain provisions that also grant you additional vacation days.

What is the contractual additional leave? Some employment contracts make a distinction between the statutory. An "additional" vacation granted (contractual vacation entitlement). An employee then has the statutory minimum leave and additional leave, which may diverge in certain situations.

What rules apply to contractual leave?

The part of your vacation entitlement that exceeds the statutory minimum vacation entitlement (contractual vacation) is not subject to the Federal Vacation Act and can therefore be freely agreed by contract to a large extent.

But! This only applies if the employment contract distinguishes between contractual and statutory leave in a legally correct manner. In the absence of a distinction, the Federal Vacation Act generally also applies to vacation that exceeds the statutory vacation (example: The employment contract only states "The employee has an annual vacation entitlement of 30 days").

Does it affect vacation entitlement whether an employee works part-time or full-time??

In principle, the entitlement to vacation leave is independent of whether you work part-time or full-time. For the calculation of the number of vacation days, it is only important how many days a week you work, but not how many hours you work per day.

How much vacation is an employee entitled to during the probationary period?

The full vacation entitlement arises if the employment relationship has existed for 6 months, the so-called waiting period (§ 4 BUrlG). It does not matter whether a probationary period has been agreed. In the case of shorter employment relationships, with a duration of less than 6 months, the employee acquires 1/12 of the annual leave for each full month.

Deviations may arise with regard to a separately agreed contractual vacation entitlement.

How many vacation days are an employee entitled to when leaving the employment relationship?

With regard to the statutory minimum vacation, the BUrlG generally ames that a complete calendar year corresponds to a vacation year (period between 01 January and 31 December).01. and 31.12.). A new vacation year begins with each turn of the year. If an employee leaves the company within a year, a distinction must be made as to whether the employment relationship ended before or after the 30.06. ends.

How high is the vacation entitlement in the event of termination in the 1. half of the year?

If your employment relationship ends (through notice of termination, fixed-term employment or termination agreement) before the 30th day of the current calendar year, you are entitled to 20 vacation days. If you are entitled to only a fraction of a day's vacation by June of a calendar year, you are generally entitled to only a fraction of a day's vacation (§ 5 BUrlG).

For each month worked, you acquire 1/12 of your annual statutory vacation entitlement.

ExampleIf the employment relationship ends on 31.04.2021 (the employment relationship thus exists for 4 months in the current calendar year) and you work 5 days a week, the calculation of the statutory vacation entitlement looks as follows:

20 vacation days / 12 months = 1.67 vacation days per month.

With three months of work until termination of employment, your vacation entitlement is therefore 1.67 * 4 = 6.68 vacation days.

If you receive a fraction of a vacation day that is more than half a day (more than 0.5), your vacation entitlement will be reduced in accordance with § 5 para. 2 BUrlG rounded up. In this example, you would therefore 7 vacation days to which you are entitled.

An additional vacation entitlement may arise from your employment contract or a collective agreement. Whether this vacation entitlement may be reduced depends on the contractual provisions in the employment or. collective agreement.

What is my vacation entitlement upon termination in the 2. Half of the year?

If your employment ends after 30. June of a calendar year and the waiting period according to § 4 BUrlG was fulfilled (6 months), you are entitled to the full statutory vacation entitlement according to § 5 BUrlG.

ExampleIf the employment relationship ends on 31 December.09.2021 (the employment relationship thus exists for 9 months in the current calendar year) and you work 5 days a week, you are entitled to a statutory vacation entitlement in the amount of 20 vacation days, although you were not employed for the entire calendar year.

Again, please note: Your employment contract or a collective bargaining agreement may stipulate e.g. Provide that the over-legal leave entitlement is reduced. It must then always be checked whether such an arrangement is effective.

What about vacation days that can no longer be taken by the end of the employment relationship? At the end of the employment relationship come the statutory. Collectively bargained/employment contract) vacation entitlements are of particular importance.

In principle, the vacation is to be granted in kind, i.e. through free time. However, if you can no longer take your vacation until the end of the employment relationship, then the vacation is to be paid out in money (so-called "vacation pay"). Vacation compensation, § 7 Abs. 4 BUrlG).

Example: Your employment ends on 31.09.2021 by termination of the employer. As shown above, if you work a 5-day week, you are entitled to a statutory vacation entitlement of 20 vacation days. Until 30.09.In 2020, however, you could only take 10 vacation days. 10 vacation days are therefore to be compensated. Must be paid to you with the last pay slip.

How is the vacation entitlement calculated?

In principle, the value of a vacation day is calculated based on the total earnings of the previous 13 weeks. An employee earns 3.500 € gross per month. Works 5 working days per week. 500 € gross monthly. Work 5 working days per week. He now takes 5 days of vacation.

(€ 3.500.00 x 3) / (13 x 5) = € 161.54

The value of 5 vacation days thus amounts to € 161.54 x 5 = € 807,70.

If the employment relationship is terminated and you have a residual vacation entitlement amounting to 5 days, then this is the amount to which you are entitled as a vacation compensation entitlement. Your employer must pay you the amount of € 807.69 gross at the end of the employment relationship.

What salary components are included in the calculation of the value of vacation??

Variable salary components can also be included in the calculation as long as they are allowances related to work performance. Remuneration in kind and increases in earnings in the 13-week period that are not for a short period of time may also be included in the calculation of vacation pay. These are then treated as if the increase in earnings had already applied to the entire period.

As a general rule, these salary components must be included in the calculation of the vacation pay or the vacation entitlement. will be taken into account for vacation compensation:

– Remuneration – Allowances in connection with work performance – Piecework wages – Sales or collection bonuses – Commissions (except: sales commissions, district commissions and commissions paid for the entire year) – Remuneration in kind – Increases in earnings that are not only for a short period of time

The following remuneration components, on the other hand, are regularly not taken into account:

– reimbursement of expenses – one-time payments – tips – capital-forming benefits – overtime pay/ lump sum – reduction in earnings during the calculation period

Can vacation entitlements lapse?

Vacation entitlement cannot be accumulated indefinitely.

In principle, annual leave must be taken within the current calendar year. Only in exceptional cases is it possible to carry over vacation until 31.03. of the following year is possible. For this purpose, according to § 7 para. 3 BUrlG urgent operational or personal reasons are present.

Urgent operational reasons are, for example, deadline or seasonal orders as well as technical or administrative problems in the operational process.

Personal reasons are the incapacity of an employee to work, the illness of a relative who needs to be cared for, or the illness of the partner with whom the vacation should have been spent.

It is important for you as an employee that your employer also has a certain obligation to cooperate. He must therefore have put you in a position to be able to exercise your vacation entitlement. If the employer does not fulfill this obligation, i.e. does not inform you of how many vacation days you are still entitled to and when they expire, this can result in the vacation days being automatically carried over into the new calendar year.

In this case, it would therefore be possible for vacation entitlements to be accumulated over several years.

With regard to the contractual (additional) vacation entitlement, the employment contract may also provide for other regulations in this regard.

AttentionHowever, there is a limit to the payment of vacation days not taken (vacation compensation) in that it is subject to the statute of limitations and to individual or legal claims. are subject to preclusion periods under collective agreements.

When do vacation entitlements expire in the event of (continuous) illness??

If you are incapacitated for work for a longer period of time, you will not be able to exercise your statutory vacation entitlement. In theory, this could result in your vacation entitlements accumulating indefinitely.

In fact, however, their vacation entitlements regularly expire 15 months after the end of the respective vacation year in the event of continued incapacity for work. This means that vacation days from the year 2019 up to 31.03.2021 "retained. After that they expire.

The situation regarding the employer's obligation to cooperate and the possible accumulation of vacation entitlements in the case of employees who are incapacitated for work is the subject of court proceedings that have not yet been concluded. The Federal Labor Court has referred the matter to the European Court of Justice. The employer must now determine whether European directives preclude the vacation entitlement from expiring 15 months after the end of the vacation year in the event of a continuing reduction in earning capacity, even if the employer has not enabled the employee to exercise his vacation entitlement.

It remains to be seen what the decisions of the courts will be.

Can vacation be reclaimed by the employer? In principle no. Once approved. Vacation taken cannot be reclaimed by the employer. Vacation that has been approved and taken cannot be reclaimed by the employer.

However, the situation may be different if a longer vacation was approved in the first half of the year and the employment relationship ended in the same year before the 30.06. ends. In this case, you may have been granted more vacation than you are entitled to on a pro rata basis.

In such cases, the employer may demand that you reduce your approved vacation leave. Otherwise, a compromise must be sought, which may be, for example, that they take unpaid leave in part.

However, if the vacation has already been taken, your employer cannot regularly demand that you pay back part of your vacation pay.

If vacation entitlements exist during short-time work?

Even during short-time work, you are in principle entitled to recuperation leave. However, short-time work can only be declared if a loss of work is unavoidable.

Since 01.01.2021, this means that i.d.R. the vacation leave is also to be brought in to avoid the short-time work, as far as the vacation wishes of the employees do not conflict with it.

In the case of so-called short-time work zero, your vacation entitlement may even be reduced proportionately. During this time, your labor is not available to the employer. Accordingly, you do not acquire any vacation entitlements during this time in accordance with the BUrlG or any European directives.

With regard to the contractual (additional) leave entitlement, the employment contract may provide for other regulations.

Do I lose my vacation if I take a leave of absence??

Leave of absence can be granted by offsetting the outstanding vacation entitlements. The prerequisite for this is that the fulfillment effect for the claims to recreational leave, are clearly regulated. It must be clear that you are also released to fulfill the remaining vacation entitlements.

If this is not the case, the remaining vacation entitlements are not used up with the leave of absence and you could have a claim to compensation for the remaining vacation days.

Additional vacation for severely disabled employees according to § 208 para. 1 SGB IX

According to § 208 para. 1 Social Code IX (SGB IX), severely disabled employees are entitled to an additional 5 vacation days per calendar year. However, these are calculated on a pro rata basis, so may differ if the employee works less than 5 days a week.

Collective agreements, employment contracts or other agreements, this additional leave can also be longer than 5 days.

If the severely disabled status is only determined in the current calendar year, the employee is entitled to 1/12 of his additional vacation on a pro rata basis for each month from which the severely disabled status was recognized. In the event of a retroactive determination of the severely disabled status, the vacation regulations on which the employment relationship is based apply to the transfer of unused vacation days to the following year.

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