By judgement dated 24 August 2016 (docket No. 5 AZR 703/15) the Federal Employment Court [Bundesarbeitsgericht, BAG] deemed invalid a preclusive period which was included by an employer in its standard employment agreement, as it expressly did not exclude from forfeiture statutory minimum wage claims pursuant to the German Employee Secondment Act [Arbeitnehmerentsendegesetz, AEntG]

In the case to be decided by the BAG the claimant, who worked in the care sector, asserted claims to the continued payment of her salary during illness and applied for the minimum wage owed pursuant to Sec. 2 German Ordinance on Working Conditions in the Care Sector [Pflegearbeitsbedingungsverordnung, PflegeArbbV]. The employer rejected her claim in reference to the preclusive period agreed in her employment agreement, pursuant to which all mutual claims under the employment relationship lapse if not asserted in writing within three months of maturity vis-à-vis the other contractual party. This deadline had not been observed by the claimant.

The BAG nevertheless ruled in the claimant’s favour and declared that the preclusive clause stipulated by the defendant after the entry into force of the PflegeArbbV violated Sec. 9 sentence 3 in conjunction with Sec. 13 AEntG and was therefore invalid. Since the preclusive period agreed in the individual employment contract did not explicitly exclude from forfeiture the claim to the branch minimum wage pursuant to the AEntG, the BAG deemed the clause invalid. The clause also could not be upheld with respect to other claims, since it was opposed by the transparency requirement of Sec. 307 Subsec. 1 sentence 2 German Civil Code [Bürgerliches Gesetzbuch, BGB].

Only the press release concerning this judgement is available to date, which means that it still remains to be seen whether the BAG’s reasons for the judgement will give concrete guidance on the required transparency and consequently on the form of exclusion clauses. However, since the BAG complains of the clause’s lack of transparency, it can be assumed that this legal opinion on the lack of transparency expressed in connection with the branch minimum wage will also be transferred to the general minimum wage in future. Consequently, extensively worded preclusive periods without the express removal of legally guaranteed minimum wage claims are invalid. The same will doubtlessly apply if the exclusion clause also fails to explicitly exclude claims due to wilful intent, gross negligence or injury to life, physical wellbeing or health (pursuant to Secs. 202 Subsec.1, 309 No. 7 BGB). Employers are therefore advised to examine the exclusion and forfeiture clauses they use in their standard employment contracts and in all events to bring new contracts into line with the new case law.

Furthermore, the legislative amendment of Sec. 309 No. 13 BGB which will be entering into force as per 1 October 2016 will have to be observed. According to this, clauses for a notice or declaration of the consumer may not stipulate a more stringent form than text form in future. The demand for the written assertion of claims in employment contracts which are concluded as of 1 October 2016 will then be regarded invalid. Previously agreed written form requirements in exclusion clauses in existing contracts concluded prior to 1 October 2016 will remain valid, however, pursuant to the transitional regulation of Art. 229 Sec. 37 Introductory Act to the German Civil Code [Einführungsgesetz zum bürgerlichen Gesetzbuch, EGBGB].