Dr. André Zimmermann LL.M.

Partner

Düsseldorf


Read full biography at www.orrick.com

Dr. André Zimmermann, a Certified Specialist for Employment Law (Fachanwalt für Arbeitsrecht), heads Orrick’s German Employment Practice. With around ten years of international experience, André is well-versed in restructuring and headcount reduction, employment aspects of M&A transactions, and employment related litigation.

André works closely with our clients' in house counsel, management and human resources to ensure business-savvy and goal-oriented advice that meets the needs of our clients' industry sector and entrepreneurial culture. 

André advises companies on a wide range of HR legal matters, including hiring and discrimination concerns, reclassifications risks, multi-jurisdictional and cross-border employment issues, HR data privacy compliance, roll out of employee handbooks and policies, performance management and terminations with a special sector focus on technology companies. Most recently, André has advised technology companies such as AppAnnie, Facebook, Flexera, Github, NVIDIA, Optimizely, Sabre, Sensata Technologies, Snap, Splunk, The Trade Desk and Visa on various employment matters in Germany.

A particular focus of his practice is on restructuring, outsourcing and headcount reductions. André has a long-standing experience in negotiating with works councils and unions and in restructuring measures of all kind. He is an acknowledged specialist in employing third-party personnel, especially through temporary agency work.

André is a core member of our global employment practice consisting of 70 specialized employment lawyers and world leading practices in our offices in the United States, Asia and Europe, offering the highest level of employment advice in all major jurisdictions. Our well-established teamwork across offices ensures international advice in employment law in our clients' cross-border projects.

Ongoing/Day-to-Day Employment Advice

  • Facebook - Ongoing general advice in employment law
  • California-based leading technology company - Ongoing general advice in employment law
  • World Triathlon Corporation/IRONMAN - Ongoing general advice in employment law
  • Leading academic social network - Ongoing general advice in employment law
  • NYSE-listed global IT service provider - Ongoing general advice in employment law with a focus on temporary agency work and contractor compliance
  • Various startups - Ongoing advice on all aspects of employment law including implementation of employee equity programs

Restructuring/Outsourcing/Joint Ventures

  • World Triathlon Corporation/IRONMAN - Advice on post-acquisition restructuring
  • Leading US travel technology company - Advice on restructuring including negotiations with works council and implementation of headcount reduction
  • Listed Germany-based Koenig & Bauer AG - Advice on major intra-group restructuring including several spin-offs in order to implement a holding structure
  • Nasdaq-listed leading provider of printing technology - Advice on restructuring of Germany business
  • Leading global supplier of medical technology - Advice on restructuring of Germany business
  • Leading national IT service provider for banks - Advice on post merger reorganization
  • Leading national asset manager - Advice on outsourcing of property management

Litigation

  • One of Europe's biggest hospital groups - Representation in more than 100 equal pay claims under the German Act on Temporary Agency Work before local and regional labour courts
  • Leading German bank - Advice on challenging first-time works council election and representation before local labour court
  • Leading global technology company - Post-acquisition redundancy scenario and representation before local and regional labour courts in numerous unfair dismissal claims
  • Leading global technology company - Post-merger redundancy scenario including ca 100 unfair dismissal claims before local and regional labour courts
  • Leading global technology company - Internal fraud investigation including representation in numerous unfair dismissal claims before court up to the Federal Labour Court

Other

  • One of the Top 10 Unicorns - Advice on market entry in Germany including implementation of employment contracts and confidentiality agreements
  • Leading US technology company - Advice on restructuring in Germany and rollout of employee handbook
  • International trading corporation - Implementation of a firmwide code of conduct in Germany including data privacy requirements of whistleblower schemes

Transactional

  • EQT - Sale of Backwerk to Valora
  • Ardian - Acquisition of a majority stake in  CNC technology company imes-icore
  • Hitachi Chemical - Acquisition of ISOLITE, a German thermal insulation manufacturer
  • DBAG - Acquisition of Abbelen Group, a leading German manufacturer of prepared foods
  • DBAG - Investment in radiology group
  • Ardian - Sale of Frostkrone stake to Emeram Capital
  • BIP Investment Partners and LUXEMPART - Acquisition of ARWE Group , a leading European provider of mobility services for car rental and car sharing companies
  • Fagerhult - Acquisition of WE-EF Group, a globally leading specialist in exterior lightin
  • TCV - Advised Palo Alto-based TCV on its first investment in Germany, one of Germany’s largest VC financings in 2016
  • Imagine Easy - Sale of Imagine Easy Solutions to Chegg, Inc.
  • Fagerhult - Acquisition of LED Linear GmbH
  • World Triathlon Corporation/IRONMAN - Acquisition of Lagardère Sports' endurance division

Posts by: André Zimmermann

After the German Election: What’s on the Horizon for Employers under “Jamaica”?

After Germany’s general election, a “Jamaica” alliance could soon rule Germany, being mathematically possible and, after the Social democrats SPD announced their return to opposition, only viable option not involving the right-wing AfD.

What’s in a Name?

A “Jamaica” alliance is named after the colors of the parties involved: Chancellor Angela Merkel’s conservative Christian Democratic Union/Christian Social Union (CDU/CSU) (black), the Free Democratic Party FDP (yellow) and the Green Party (green). The term likely also refers to the “exotic” nature of such an alliance (at least from a German point of view), even though there have been “Jamaica” governments on state level before. Such coalition certainly will face challenges to find a common ground – and a coalition agreement.

We provide a quick summary for employers of potential changes in employment law under “Jamaica”:

Working Time

Currently, the German Working Time Act provides for a rather strict working time regime: Working time must, in principle, not exceed 8 hours per work day. This may be extended to up to 10 hours per work day, however, only if it does not exceed 8 hours per work day on the average. Only under certain conditions, collective bargaining agreements may provide for further extensions. Also, at the end of a work day, there must be an uninterrupted rest period of 11 hours. If taken seriously, this causes problems especially when employees check e-mail or have calls in the evening at home.

CDU has announced to modernize the Working Time Act. Employer’s associations and unions shall have more leeway and be able to develop and agree on more flexible working time schemes. However, this shall not result in an increase of the maximum overall working time per week of 48 hours. Also, in addition to the already existing claim for part-time work, employees shall have the right to return to full time unilaterally after having reduced hours, creating an entitlement to limited part-time.

Like the CDU the FDP wishes to provide more flexibility to employers and employees. The Liberals plan to abolish the maximum working time of 8 respectively 10 hours per work day and the mandatory rest period of 11 hours. Instead, in line with European directives, a weekly maximum working time of 48 hours shall be implemented.

The Greens plan on extending employee rights as regards working time. Employees shall have a rather far-reaching right to choose their working time between 30 and 40 hours per week. Within this range, as a rule, employees shall be entitled to determine their own working time scope, however, observing certain notice periods. Employers may reject a reduction or increase in hours in case of urgent operational reasons. Also, employees that have reduced hours shall be entitled to return to full time. Moreover, employees working on bank holidays or Sundays shall be entitled to receive mandatory supplement payments.

Minimum Wage

US employers are used to (increasing) minimum wage legislation. In Germany, a minimum wage has only been introduced in 2015 with transition period until the end of 2016. Since January 1, 2017, the minimum wage is set at EUR 8.84 gross per hour.

CDU and traditionally business-friendly FDP want to cut back on red tape and form-filling for employers related to the minimum wage. Both parties criticize the provisions of the Minimum Wage Act, in particular the extensive documentation obligations for employers, as being too bureaucratic.

The Greens are in favour of extending industry-specific minimum wage levels above the statutory minimum wage. When determining the minimum wage levels, protection of employees against wage dumping, safeguarding employment and fair competition shall be considered.

Digitalization and Mobile Working

German employment law is not exactly being considered to be up-to-speed with the digitalization of work. For example, despite several attempts, a comprehensive legislation on employee data protection is missing, so are specific provisions on mobile and remote work.

While the CDU’s program does not contain any specifics on the effects of digitalization on employment, the FDP plans to implement modern rules for mobile working, cut back red tape for remote working/home office and to abolish outdated workplace regulations.

The Greens stress the necessity of up-to-date occupational safety regulations and effective employee data protection. Requirements of today’s modern working world are to be aligned with the employees’ needs.

Fixed-Term Employment

Under current legislation, fixed-term employment is lawful only where there is cause (e.g. temporary need, substitute employment during parental leave) or without cause only for a total period of up to 2 years, while contracts for a shorter period can be extended up to three times. In essence, companies can test new hires for a period of up to 2 years.

The Greens plan on abolishing fixed-term employment without justification. So any fixed-term employment would require cause.

FDP does not plan to implement any further restrictions for-fixed term employment, while the CDU’s program only states fixed-term employment may not be abused by employers to simply replace unlimited employment.

Agency Work

Agency work is already strictly regulated in Germany. Just recently a reform of the Act on Temporary Agency Work came into effect, limiting the maximum hire period of agency workers to 18 months and providing for equal pay for agency workers after 9 months.

The FDP is against any further regulation of agency work. The conservative CDU’s program refers to the recent changes in German law on agency work and does not provide for any stricter regulation.

The Greens advocate even further regulation of agency work, including entitlement to equal pay for agency workers from day 1.

Collective Bargaining

The CDU’s program provides for more flexibility and leeway for the social partners – employers and employers’ associations on the one side, unions and works councils on the other side. Statutory provisions shall be amended accordingly, so there is more freedom for agreements on company and operational level.

In order to safeguard working conditions for employees, the Greens plan on implementation of a simplified procedure to declare collective bargaining agreements universally applicable and binding. Consequently, such collective bargaining agreements would apply even though neither the employer is member of an employer’s association nor the employee is union member.

FDP’s program does not contain any specifics, but the party, traditionally being liberal and business-friendly, is likely to oppose extension of collective bargaining.

So What’s Next?

It remains to be seen how the negotiations proceed in the coming weeks (and potentially months). Depending on the assertiveness of each of the three potential coalition partners, the coalition agreement and the legislative period will impact employers in Germany. Though this will likely not be comparable to the revolution of the French employment law under Macron, significant changes to German employment law appear to be likely in the very near future.

Orrick Establishes Automated GDPR Readiness Assessment Tool

 

On September 6, 2017, Orrick announced the launch of its innovative online automated GDPR Readiness Assessment Tool. The tool helps organizations assess their state of readiness with the EU’s new General Data Protection Regulation (GDPR) that comes into effect on 25 May 2018. The tool segments the GDPR into 14 workable themes and takes users through a series of questions relating to each theme. READ MORE

Germany: Employee Monitoring by Keylogger Permitted Only in Exceptional Cases

According to a recent decision of the German Federal Labor Court (Bundesarbeitsgericht – BAG), the use of a keylogger software, which records all keyboard entries on a workplace computer for covert monitoring and control of the employee, is prohibited if there is no suspicion of a criminal offense or severe breach of duty.

Legal Background

Although severely exceeding the limits of permissible private use of the workplace computer and Internet may in principle constitute such a grave infringement of the obligations under the employment relationship that a dismissal with immediate effect may be justified, it must be kept in mind that the employer bears the burden of proof for the employee’s misconduct in case of a claim for unfair dismissal.

If evidence is achieved in breach of the Federal Data Protection Act (Bundesdatenschutzgesetz – BDSG), this generally indicates that its utilization in legal proceedings may infringe the employee’s right on informational self-determination and, therefore, is not admissible evidence. READ MORE

Be Prepared Update on EU Employment Data Privacy Laws

Global companies face stricter rules on employee data privacy, in particular when using social media and internal monitoring tools. It also now becomes clearer that many EU Member States will use the opening clause of Art. 88 General Data Protection Regulation (“GDPR”) to re-implement their “old” data privacy laws.

  1. Use of Social Media And Employee Analysis Tools Under GDPR

Recently, the Article 29 Working Party (“WP29”), the expert group of European data protection authorities, published its opinion on the upcoming changes relating to data privacy at the work place. It explains what employers should do for ensuring compliance with the GDPR and provides guidelines for the use of information found on social media platforms – such as Facebook or LinkedIn and for electronic monitoring of employees. READ MORE

Agency and Contractor Compliance in Germany–Are You Ready?

On April 1 2017, the reform of the German Act on Temporary Agency Work (Arbeitnehmerüberlassungsgesetz) came into force bringing major changes for agencies and their clients. Agencies and their customers have to revisit work processes and agreements. The same is true for the use of external staff based on service or work contracts (e.g., facility management, IT services) The time to act is now, since not all changes are subject to transition periods. In fact, material changes already came into force on April 1,2017, the violation of which may result in severe sanctions up to criminal penalties.

READ MORE

Germany’s Financial Regulator Implements New Electronic System Guaranteeing Whistleblowers Absolute Anonymity and Non-traceability

As we reported last summer, Germany’s Financial Supervisory Authority (BaFin) set up a centralized platform for receiving whistleblower complaints of alleged violations of supervisory provisions within the financial sector.

Beginning this year, the BaFin implemented a new electronic system, allowing whistleblowers to submit their reports. The system guarantees the informants absolute anonymity, while on the other hand enabling the BaFin to make contact regarding possible inquiries. Thereby, although taking place on anonymous basis, the newly installed communication channel is expected to give BaFin the opportunity to verify the truth value of the submitted information by posing further questions, e.g. regarding the background of the complaint. READ MORE

New Restrictions for Temporary Agency Work in Germany in 2017

On October 21, 2016, the German Parliament adopted the draft law regarding the reform of the German Act on Temporary Agency Work (Arbeitnehmerüberlassungsgesetz – AÜG). The reform will come into force as planned on April 1, 2017 and will bring material changes for both, agencies and their customers, the host businesses.

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Germany: Legislative Change Requires Amendments to Standard Employment Contracts

A legislative change that entered into force on October 1, 2016, affects multinationals with employees working in Germany. In order to comply with these recent changes, companies doing business in Germany should now double-check and, where necessary, adjust their standard employment contracts.

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ECJ: No Discrimination Claims for Mock Applicants in Europe

Just in time for the 10th anniversary of the German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz – AGG) the European Court of Justice (ECJ) has clarified that European anti-discrimination law does not protect mock applicants, i.e. applicants who are not interested in being hired, but solely apply in order to bring claims on the grounds of discrimination. The judgment will make it easier for companies in Europe to reject such discrimination claims in the future.

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