Germany’s Federal Constitutional Court (Bundesverfassungsgericht – BVerfG) has overturned the controversial case law of the Federal Labour Court (Bundesarbeitsgericht – BAG) on fixed-term contracts. The controversial judgment handed down by the BAG in 2011 with regard to what is known as the “prohibition of subsequent contracts” exceeds the limits of what is permitted under the German constitution in terms of judge-made law.
Back in 2011 the BAG had decided that a previous employment with the same employer did not preclude a fixed-term contract without objective justification as per section 14(2) of the German Act on Part-Time Work and Fixed-Term Employment (Teilzeit- und Befristungsgesetz – TzBfG), provided that such previous employment dates back more than three years. The Federal Constitutional Court has now quashed this case-law. This is expected to have substantial repercussions in practice.
According to a survey by a national German newspaper, a large proportion of German whistleblowers are facing labor law and even health problems in connection with whistleblowing. 13 out of 20 whistleblowers subsequently lost their jobs. READ MORE
In Germany, regular works council elections are held every four years. The next election period is quickly approaching, starting on March 1, 2018.
Companies with business in Germany should prepare for the election process and employee initiatives to elect a works council. Our bilingual guide, based on years of experience, provides practical tips and legal considerations, navigates you through the election process and helps you avoid pitfalls that can be costly.
To access the full guide, please click here. If you have any questions, feel free to reach out to André Zimmermann, Head of our German Employment Law Practice, or Mike Delikat, Chair of our Global Employment Law Practice.
In June 2017, the French government unveiled its plan to renew French social model, such program includes notably reforming employment law, French pension and unemployment insurance systems.
As a first step of this comprehensive reform strategy, five ordinances reforming French labor laws were adopted on 22 September 2017 and issued on 23 September 2017 (the Reform).
Unless specifically provided otherwise, the measures introduced by the Reform will enter into force on the day after the publication of the required implementation decrees (expected as from end of October 2017 onwards), and at the latest on 1 January 2018. By exception, certain measures are applicable since publication of the ordinances (e.g. regarding dismissals, temporary work and teleworking). In addition, transitional arrangements may allow existing employee representation to remain in place for the duration of the current mandate but until no later than 31 December 2019. READ MORE
In a case highlighting the European Continent’s approach to worker privacy, the Grand Chamber of the European Court of Human Rights ruled that employers may violate employees’ rights when monitoring their electronic correspondence in the workplace. In Barbulescu v. Romania, the Grand Chamber reversed a prior decision from a smaller panel of the European Court of Human Rights (“ECtHR”) which had determined companies have far-reaching authority to monitor employees’ electronic communications—a similar standard to that which exists in the United States. READ MORE
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
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.
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
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.
- 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
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
The German Federal Labor Court (Bundesarbeitsgericht – BAG) has ruled that when an employer provides Facebook users access to publish posts on the company’s Facebook page that relate to the behavior or performance of individual employees, that process is subject to negotiation and co-determination of the works council.
The ruling is of particular significance especially for companies with an existing works council in Germany that operate a Facebook page or a page on a similar social network with a commenting function for users.