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What are the requirements relating to advertising positions?
The General Equal Treatment Act prohibits adverse treatment of employees on the grounds of race or ethnic origin, sex, religion or ideology, disability, age or sexual orientation. The advertisement of vacancies and the entire recruitment process must thus avoid any possible adverse treatment. Hence, job advertisements may list only criteria that are necessary for the position in question.
What can employers do with regard to background checks and inquiries in relation to the following:
(a) Criminal records?
Applicants may be asked to produce a criminal record only if the information is relevant to the position in question. For example, if it were seeking to fill the position of bank teller, an employer could request a criminal record with regard to white-collar crimes.
(b) Medical history?
Applicants may be asked to disclose medical conditions only if the information is relevant to the position in question. For example, a healthcare facility may ask for a certificate of health.
(c) Drug screening?
Drug screening is permitted only if the employer has a legitimate interest in a medical examination. Moreover, as a matter of principle, drug screening requires the candidate or employee’s consent.
(d) Credit checks?
Credit checks are legitimate only if the employer has a legitimate interest in knowing the candidate’s financial circumstances. This will be the case if the position qualifies as a position of special trust (eg, broker or fund manager).
(e) Immigration status?
For non-EU residents, the employer must check whether the candidate has a valid residence permit allowing him or her to work in Germany.
(f) Social media?
Researching candidates via social media is not prohibited by law, provided that the information is retrieved from freely accessible public sources.
Background checks are permissible only in exceptional cases. As a general rule, the employer is required to obtain any information relevant to the selection process directly from the candidate.
Moreover, inquiries made by an employer are legitimate and permissible only if the answers are necessary for the employer to assess whether the candidate is capable of properly performing his or her duties with regard to the position in question.
Wages and working time
Is there a national minimum wage and, if so, what is it?
The Minimum Wage Act currently provides for a minimum hourly wage of €8.50 gross, which is the lowest limit for the compensation of employees in Germany. The Minimum hourly-wage will increase to € 8.84 gross in 2017 (effective January 1 2017).
Wages are primarily governed by:
- statutes (eg, on the minimum wage);
- collective bargaining agreements (where applicable or generally binding); and
- where a works council exists, shop agreements.
Are there restrictions on working hours?
Working hours are primarily governed by:
- the Working Time Act;
- the Youth Labour Law;
- collective bargaining agreements; and
- specific working time provisions in some industries (eg, airlines, logistics and railways).
The Working Time Act provides that the regular working hours in a working day may not exceed eight hours. ‘Working days’ are defined as Monday to Saturday; thus, a maximum of 48 hours a week is possible. The hours in a working day may be extended to a maximum of 10 hours if, over six calendar months or within 24 weeks, an average of eight hours per working day is not exceeded.
Further increases are possible under certain conditions (eg, under a collective labour agreement or shop agreement, or with permission from the relevant authority).
Hours and overtime
What are the requirements for meal and rest breaks?
Employees must be given rest breaks of at least 30 minutes for working days of six to nine hours and of at least 45 minutes for working days in excess of nine hours. These breaks can be split up into several 15-minute breaks. The employer can decide when to allow the breaks; but if there is a works council, the distribution and timing of breaks must be agreed with the works council.
There is no general obligation to provide meals to employees (except in certain sectors such as aviation and shipping).
How should overtime be calculated?
Any hours worked upon the instruction of the employer in excess of the agreed regular daily, weekly or monthly working time (depending on what calculation basis has been agreed in the employment contract) constitute overtime. However, there is no general legal principle that every hour of overtime or every attendance at the workplace above the agreed working hours must be remunerated.
If there is no tariff agreement and no other express agreements on the remuneration of overtime, Section 612 of the Civil Code applies. As a result, the usual hourly wage can be taken as a basis for calculating overtime. Employees earning above a certain (dynamic) annual salary need not be remunerated separately for overtime.
What exemptions are there from overtime?
Under the Maternity Protection Act, pregnant women and breastfeeding mothers cannot be instructed to work overtime; restrictions also apply to employees who are minors. Severely disabled persons can submit an application requesting an exemption from overtime.
Is there a minimum paid holiday entitlement?
Employees’ right to paid vacation is governed by the Federal Vacation Entitlement Act. Since Saturday is counted as a working day, the minimum vacation entitlement of 24 working days relates to a six-day working week. If the employee works a five-day week only, the minimum vacation entitlement is 20 days per year (equivalent to four weeks).
In the event of regular distribution of work over fewer than five days a week, the number of vacation days is reduced accordingly.
What are the rules applicable to final pay and deductions from wages?
German employment law assumes that the employee is obliged to perform his or her services in advance of payment. If remuneration is calculated over certain periods of time, it is payable upon the expiration of each period. In Germany, it is common to agree on monthly remuneration, which thus falls due at the end of each month.
German employees receive a net salary, from which tax and social security contributions have already been deducted by the employer. The level of deduction depends on the amount of income and consists of taxes and social insurance (health, nursing, pension and unemployment insurance). The employer must register its employees with the tax authority, withhold the taxes to be paid by them and transfer the money directly to the tax authority.
Social security contributions must also be withheld by the employer after calculating the gross salary and – along with the additional social security contributions required of the employer – must be transferred to the employee’s health insurer, which then distributes all of the contributions (except accident insurance) to all relevant institutions. Employees’ social security contributions currently amount to between 19.275% and 19.575% of their gross monthly salary, up to a ceiling of €6,200 (West) or €5,400 (East) in 2016. The employer’s additional contribution amounts to between 19.025% and 19.325%.
Contributions for accident insurance must be paid separately to the Employers’ Liability Insurance Association by the employer.
What payroll and payment records must be maintained?
The various computerised payroll accounting systems available generate standardised payslips. The payslip must at least state the relevant payment period and the composition of the remuneration.
Payslips, social insurance accounting and statements of contributions paid must be kept until the end of the year following the last audited calendar year. Payroll and related documents must be kept for six years, starting from the end of the respective payroll period.
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