Employment Law16.12.2020 Newsletter

Focus on Labor Law - 4th quarter 2020

The year 2020 has been strongly influenced by the corona pandemic, also in terms of labour law. This is reflected not only in the legislation but also in the case law. This newsletter provides you with an update on the laws of relevance to employers that were passed by the Bundestag shortly before the end of the year to cushion the blow of the corona crisis. Also outside of corona, however, the labour law courts once again have some exciting rulings to offer. Read for yourself!

1. New case law

1.1 Crowdworkers can be employees

1.2 Consultation of the central works council in the case of mass dismissals based on a uniform overall corporate concept for several works

1.3 Camera surveillance to measure distancing during corona in breach of co-determination requirements

1.4 Incorrect invitation leads to the invalidity of the works council’s resolution

1.5 Introduction of short-time work by notice of immediate termination pending a change of contract is permissible

1.6 Invalid dismissal of a regular employee for operational reasons when the employer permanently uses temporary workers

1.7 Granting of holiday in case of an immediate termination

1.8 Discrimination against part-time employees in collectively agreed remuneration provisions

1.9 No compensation in case of “randomly made” statements

1.10 Compulsorily demanded provision of "Mr." or "Ms." is discriminatory

2. Legal developments – corona update

2.1 Extension of numerous special regulations on short-time work into the year 2021

2.2 Tax relief

2.2.1 Home office / remote work

2.2.2 Corona bonus / contributions to short-time workers’ compensation

3. Current affairs

3.1 Legal tech in labour law

3.2 Training courses

1. New case law

1.1 Crowdworkers can be employees

In its ruling of 1 December 2020, the German Federal Labour Court [Bundesarbeitsgericht, BAG] confirmed the employee status of a supposedly self-employed crowdworker. This was the first time the court has commented on the controversial legal classification of this form of employment(docket No.  9 AZR 102 20).

The defendant checked the presentation of market products for several clients. To this end, it used the services of so-called crowdworkers. Their task was to use an app to take photos of product placements and answer questions about the advertising of products. The defendant offered corresponding microjobs via an online platform. Via a personal account, each user of the platform could accept certain orders and thereby commit himself to executing these orders within two hours in accordance with detailed specifications of the defendant. The experience points gained in the process were then credited to the user’s account and the user could reach higher "levels" with associated advantages.

The Federal Labour Court affirmed the existence of an indefinite employment relationship in the specific case. In its decision, the 9th Senate examined in particular the statutory requirements of § 611a German Civil Code [Bürgerliches Gesetzbuch, BGB]. The Senate was of the opinion that, on the basis of the concrete circumstances of the individual case, even as a crowdworker the claimant was conducting work that was bound by instructions and determined by others in a situation of personal dependence. While the specific designation of the contract is of no significance, the fact that the crowdworker, as contractor, actually cannot freely structure his employment activity in terms of its place, time and content, is decisive. This is supported by the defendant’s organisational structure, namely the step-by-step completion of contractually specified small orders with the aid of the online platform. The associated rating system with the advancement in "levels" also serves as an incentive to continuously perform presentation-checking activities at a customary domicile and thus achieve a higher hourly wage.

The decision leaves an ambivalent impression: although the Federal Labour Court succeeds in examining the novel form of employment of crowdworking on the basis of the tried and tested criteria of § 611a BGB, the result is of only limited practical help, because the case-by-case nature of the decision is expressed quite clearly: crowdworkers can be, but are not necessarily employees. It remains to be seen whether the German Federal Ministry of Labour will now also address with this issue so that enormous practical uncertainties can be avoided.

Dr. Alexander Willemsen

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1.2 Consultation of the central works council in the case of mass dismissals based on a uniform overall corporate concept for several works

In the case of notifiable mass dismissals, the employer must conduct the consultation procedure pursuant to § 17 (2) German Unfair Dismissals Act [Kündigungsschutzgesetz, KSchG] with the central works council if the measure is based on an overall corporate concept which extends over several works. If the local works council is consulted instead, then the declared dismissal is invalid.

The Regional Labour Court [Landesarbeitsgericht, LAG] of Düsseldorf had to deal with the dismissal of a miner resulting from the closure of the last hard coal mine in Germany, "Prosper-Haniel". The defendant had already concluded a compromise of interests with the central works council in 2015, which had addressed the closure of the mine. In January 2019, the defendant then agreed with the local works council on a compromise of interests with a list of names regarding the permanent closure. When it filed the notice of mass dismissals, it attached the compromise of interests and stated that this replaced the statement of the works council. The claimant was included on the list of names, and the defendant terminated his employment accordingly.

By judgement dated 15 October 2020 (docket No. 11 Sa 799/19), the Düsseldorf Regional Labour Court ruled that the miner's dismissal was invalid because, in the context of the mass dismissal, the defendant had conducted the required consultation procedure with the wrong body due to its lack of competence. Since the duty to consult pursuant to § 17 (2) KSchG is a provision of shop constitution law, the competent employee representative body for this procedure must also be determined in accordance with the allocation of competences under the Shop Constitution Act [Betriebsverfassungsgesetz, BetrVG]. This assigns a matter requiring participation to the central works council if it is not confined to the individual works and if the interests of the employees cannot be safeguarded at the works level. In the case of staff cutbacks carried out on the basis of a uniform corporate concept and which affects several works, the central works council is the competent body for the consultation procedure. 

The decision shows once again how error-prone notifiable mass dismissals are. If a staff cutback affects several works and if there is a central works council which would be the competent body according to shop constitution law, the employer would be well advised to consult the central works council within the framework of the obligatory consultation procedure pursuant to § 17 (2) KSchG. In the best case scenario, this is backed up by additional delegation resolutions of the local works councils.

Alexandra Groth

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1.3 Camera surveillance to measure distancing during corona in breach of co-determination requirements

In interim injunction proceedings, the Labour Court [Arbeitsgericht, ArbG] of Wesel ruled that camera surveillance to check compliance with recommended safety distances during the corona pandemic is also subject to co-determination pursuant to § 87 (1) No. 6 BetrVG.

The respondent used cameras installed on the premises to monitor whether persons present on the premises were complying with the safety distances recommended during the corona pandemic. A shop agreement on the installation and use of surveillance cameras existed insofar. The recordings were transmitted to anonymisation software with data servers in Dublin (Ireland) and were subsequently analysed. The competent works council ordered the employer to comply with the co-determination rights pursuant to § 87 (1) BetrVG, whilst the latter was of the opinion that there was no co-determination requirement because of the anonymisation.

The Wesel Labour Court ruled on 24 April 2020 (docket No. 2 BVGa 4/20) that the recording of employees is fundamentally subject to co-determination pursuant to § 87 (1) No. 6 BetrVG. The purpose of checking compliance with the distances was not covered by the shop agreement. Moreover, the anonymisation ruling out the co-determination requirement only takes place after the data has been sent to the anonymisation software in Ireland, which means that this did not rule out the co-determination. Only in cases of emergency, including the prevention of acute danger or damage, is the employer able to issue unilateral orders without the direct participation of the works council. The corona pandemic poses a serious threat, but no such emergency. Insofar, the general personal rights of employees prevail.

Although the Wesel Labour Court correctly states that the co-determination of the works council is fundamentally applicable pursuant to § 87 (1) No. 6 BetrVG, the blanket statement that the corona pandemic does not constitute an "emergency" and that the employees' general personal rights prevail seems neither comprehensible nor valid.

Annabelle Marceau

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1.4 Incorrect invitation leads to the invalidity of the works council’s resolution

Resolutions of the works council passed in a meeting which was not convened by the chairman or his deputy are invalid. The works council is therefore only capable of acting and functioning through its chairman or deputy chairman. This was decided by the Federal Labour Court in a decision dated 28 July 2020 (docket No. 1 ABR 5 19).

In the case at hand, the chairman of the works council, who was fully released from his duties pursuant to § 38 (1) BetrVG, was incapacitated due to illness, and his deputy was absent on holiday. In consequence, a normal works council member sent an invitation to the works council meeting via the password-protected e-mail account of the chairman and signed this e-mail in his own name. At the subsequent works council meeting, the remaining works council members unanimously decided to refuse to give their consent to an individual personnel measure applied for by the employer. The employer subsequently implemented the individual personnel measure without previously initiating a procedure to replace the consent.

The Federal Labour Court also did not see any need for the employer to conduct proceedings to replace the consent since the works council had not validly objected to the individual personnel measure. This is because a valid works council resolution requires an invitation by the works council chairman or his deputy. Due to his certified incapacity to work, however, the works council chairman was prevented from holding office. This prevention applied to all official business. Due to the deputy’s absence on holiday, he was also unable to attend. The shop constitution does not provide for an invitation by another member of the works council, however. The Federal Labour Court assesses the incorrect invitation as a gross violation of the essential procedural provision of § 29 (2) sentence 1, 3, BetrVG, which leads to the invalidity of the works council resolution.

Employers should therefore always pay attention to the works council's ability to act and pass resolutions if the validity of the works council resolution passed is of decisive importance to them, e.g. in the case of dismissals, the consultation procedure in the context of mass dismissals, compromises of interests, short-time work introduced by shop agreement, etc.

Isabel Hexel

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1.5 Introduction of short-time work by notice of immediate termination pending a change of contract is permissible

The introduction of short-time work at short notice in companies without works councils, even without the consent of the employees, may be vital for businesses in view of the ongoing pandemic. According to a ruling of the Stuttgart Labour Court (judgement of 22 October 2020, docket No. 11 Ca 2950/20), companies can now make use of a notice of immediate termination pending a change of contract in order to introduce short-time work.

In the case to be decided by the Stuttgart Labour Court, the pandemic caused a considerable loss of work at the defendant as early as in March 2020. It had reported this to the employment agency in order to introduce short-time work, which was approved shortly afterwards, until the end of the year. There was no works council at the defendant. The claimant, who was unable to work, was asked for her consent to the introduction of short-time work, but refused. The defendant then declared her immediate termination pending a change of contract or, in the alternative, her ordinary termination pending a change of contract. This was to entitle it to introduce short-time work from May until presumably the end of the year, provided that the requirements of §§ 95 et seq. German Social Code Book III [Sozialgesetzbuch III, SGB III] are met. The termination pending a change of contract also provided that the defendant was entitled to give notice in text form of the beginning and end as well as the reduction of the weekly working time, subject to a notice period of three weeks. The distribution of the working time remaining in the period of short-time work over the individual calendar days as well as the scheduling of the daily working time was to be based on the operational requirements and the employer's instructions. The claimant accepted the offer with reservations and filed an action for protection against termination pending a change of contract.

The Labour Court considered the immediate termination pending a change of contract for operational reasons to be justified. The strict principles developed by the Federal Labour Court on the pure reduction of remuneration, which require a concrete threat of insolvency, are not transferable. It was not going to interfere with the mutual performance relationship between employee and employer, since the salary and work obligation would be reduced in equal measure, and since short-time work was not of a permanent nature. The court also deemed irrelevant the fact that the prerequisites for receiving short-time compensation were not met by the claimant for several months on grounds of her inability to work.

The decision has considerable practical significance. Employers without works councils can more easily make urgently needed savings by receiving short-time workers’ compensation even without the employees’ consent. In individual cases, however, the dismissals pending a change of contract declared for this purpose must always withstand the test of their reasonableness. Insofar, attention must be paid to the careful formulation of the notice of dismissal pending a change of contract, which may only bring about those changes that are mandatory. The wording also has to be sufficiently specific.

Anja Dombrowsky

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1.6 Invalid dismissal of a regular employee for operational reasons when the employer permanently uses temporary workers

The dismissal of a regular employee for operational reasons is invalid if alternative employment opportunities exist. This is the case for regular employees when the employer employs temporary workers with whom it covers a (basic) volume of work that does not fluctuate but is constantly available (LAG Cologne 2 September 2020, docket No. 5 Sa 295/20).

The defendant, an automotive components supplier, employs temporary workers in addition to 106 (regular) employees. The defendant reduced the staff surplus resulting from a decline in orders by dismissing the claimant, a regular employee, for operational reasons. For approximately two years prior to the notice of termination, the defendant had continuously employed temporary workers at the works of the claimant, with the exception of a few breaks (at the end of the year and during the works holidays).

According to the claimant, the dismissal was invalid because the defendant could continue to employ him in a vacant position in which it had previously used temporary workers. The defendant replied that it used temporary workers only in substitution as a personnel reserve. On the defendant’s appeal, the Cologne Regional Labour Court has now also ruled in the claimant’s favour.

The jobs of the temporary workers were to be regarded as vacant jobs in which the claimant could have continued to be employed. It is true that, as a rule, there is no vacant workplace if the employer employs temporary workers as a personnel reserve in order to cover a need for substitutes or order peaks. However, to the extent that the employer uses temporary workers to cover a (basic) volume of work which does not fluctuate but is constantly available, an alternative employment opportunity can be assumed. This needs be used as a matter of priority for regular employees who would otherwise face dismissal. A permanent need and thus a (basic) volume of work exists if (different) employees are repeatedly absent in a foreseeable scope. Because of the continuous use of the temporary workers, this did not constitute a reserve of substitute personnel. The Cologne Regional Labour Court has allowed the appeal on points of law.

Before dismissing permanent employees for operational reasons, employers should therefore carefully examine for what purpose or in what (temporal) scope temporary workers actually work at the business.

Johannes Peter Kaesbach

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1.7 Granting of holiday in case of an immediate termination

The employer may grant leave to an employee in connection with an immediate termination or, in the alternative, a dismissal with notice as a precautionary measure in the event that the employment relationship is not terminated by the extraordinary termination. The fulfilment of the holiday entitlement is not precluded by the uncertainty about the continuation of the employment relationship associated with an unfair dismissal action, nor by any obligations of the employee to act vis-à-vis the employment agency.

In connection with an extraordinary termination, alternatively an ordinary termination of an employee, the employer stated in the notice of dismissal that the holiday entitlement that had not yet been taken would be compensated in the event of the validity of the immediate termination. In the event of the invalidity of the immediate termination, the compensation paid was to be understood as payment of the holiday remuneration for the period in question. In addition, the employer assured the unconditional payment of the holiday remuneration. After the employment relationship was terminated by settlement with an ordinary notice period in unfair dismissal proceedings, the employee asserted remuneration claims for the period of the ordinary notice period by filing a separate action.

By decision of 25 August 2020 (docket No. 9 AZR 612/19), the Federal Labour Court confirmed its line of previous case law on the fundamental admissibility of the precautionary granting of leave in connection with the declaration of an immediate termination. At the same time, it emphasised that the uncertainty as to the existence of an obligation to work during the period in question did not preclude this. It is sufficient that the employee knows for certain that he will not be called upon to work during a certain period of time and that he therefore has leisure time for recuperation purposes. Any obligations to act on the part of the employee vis-à-vis the employment agency which could restrict the self-determined use of the leisure time do not preclude the fulfilment of the holiday entitlement. This was solely within the employee's sphere of risk and the employer did not owe any "holiday success".

The practice of granting precautionary holiday in connection with the declaration of an immediate termination, as confirmed by the Federal Labour Court, is to be welcomed from the employer's point of view, since the payment of default wages and payment in lieu of holiday is avoided in the event of a defeat in unfair dismissal proceedings. However, particular care should be taken when declaring the precautionary granting of holiday in the termination letter in order to ensure that the requirements of the Federal Labour Court for the valid granting of leave are met.

Jennifer Bold

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1.8 Discrimination against part-time employees in collectively agreed remuneration provisions

In a request for a preliminary ruling dated 11 November 2020 (docket No. 10 AZR 185/20), the Federal Labour Court has asked the ECJ to interpret Union law provisions with regard to part-time employees. The purpose of this is to clarify whether provisions of collective agreements which make additional remuneration conditional on working in excess of a certain number of working hours are compatible with Union law if no distinction is made between full-time and part-time employees as regards the number of hours that have to be exceeded.

The defendant is an air carrier in which the claimant is employed part-time as an airline pilot and first officer. The claimant's part-time work comprises 90% of the full-time work. The applicable collective bargaining agreement contains the provision that employees are only entitled to remuneration for additional flight duty hours if they reach a certain number of flight duty hours per month. The specified threshold of hours to be exceeded for overtime pay applies equally to part-time and full-time employees.

The claimant objected to this and demanded that the defendant pay him more than had already been paid to him for the extra work conducted by him. He argued that the provisions of the collective bargaining agreement violated the prohibition of discrimination under § 4 (1) German Part-Time and Temporary Employment Act [Teilzeit- und Befristungsgesetz, TzBfG] for no material reason. The defendant argued that the overtime pay was intended to compensate for special workloads, which, however, only exist when the collectively agreed trigger limits are exceeded. The Munich Labour Court upheld the action, but the Munich Regional Labour Court dismissed the action.

The Federal Labour Court forwarded the question to the ECJ in a request for a preliminary ruling: collectively agreed provisions raise questions on the interpretation of Union law if additional remuneration is made dependent solely on whether the same number of working hours is exceeded, without distinguishing between part-time and full-time employees.

The ECJ's decision is eagerly awaited. In the past, the 10th Senate of the Federal Labour Court has already assumed the justifiable unequal treatment of part-time employees if overtime bonuses are paid as compensation for the special demands placed on employees who work beyond a certain daily or weekly work volume (BAG, 19 December 2018, docket No. 10 AZR 231 18).

Cornelia-Cristina Scupra

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1.9 No compensation in case of “randomly made” statements

The Berlin-Brandenburg Regional Labour Court ruled in its judgement of 1 July 2020 - 15 Sa 289/20 that so-called “randomly made” allegations alone are not sufficient, even when presenting circumstantial evidence in the context of a discrimination case.

The parties disputed a claim for compensation due to discrimination pursuant to § 15 (2) German General Equal Treatment Act [Allgemeines Gleichbehandlungsgesetz, AGG]. The claimant is severely disabled and applied to the defendant for a position as customer services representative in January 2019. The defendant did not consider the claimant's application. The claimant subsequently filed a claim for compensation on the basis of discrimination due to his severe disability.

The Berlin-Brandenburg Regional Labour Court dismissed the action on the grounds that the claimant had not presented sufficient indications of any discrimination. He specifically had not fulfilled his burden of representation and proof pursuant to § 22 AGG. Although, within the framework of § 22 AGG, presumed circumstances may also be presented if the parties have no insight into the business processes of the opponent, such allegations are always inadmissible if they are merely “randomly made”, without the party being able to provide any factual evidence to support its presumption. Applying these principles, the claimant's argument that the failure to appoint an integration officer (§ 181 SGB IX), the failure to involve the employment agency (§ 164 (1) SGB IX) and the failure to involve the representative body for severely disabled persons and the works council (§§ 164 (1), 178 (2) SGB IX) had an indicative effect, can be rejected. The required evidence of any such discrimination is lacking. Otherwise, it would be possible to raise such procedural violations against refusing employers at any time. The fact that the claimant had previously requested information from the defendant in vain also does not lead to any different assessment, since such a right to information does not exist.

The ruling of the Berlin-Brandenburg Regional Labour Court can of course be welcomed, as it sets a minimum standard for the assertion of alleged discrimination in substantiation of compensation claims. An abusive use of §§ 22, 15 AGG as a source of income is therefore so simple. However, the judgement should not conceal the fact that, in the past, a violation of the extensive procedural regulations of § 164 (1) SGB IX or even the absence of an integration officer with only just a few more indications has indeed sufficed to establish a compensation claim.

Kathrin Vossen

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1.10 Compulsorily demanded provision of "Mr." or "Ms." is discriminatory

If, for example, there is no gender-neutral form of address to choose from in an online portal, and if one is obliged to choose the form of address "Mr." or "Ms.", this violates the general personal rights of persons with non-binary gender identity. This was ruled by the Regional Court of Frankfurt am Main in a judgement dated 3 December 2020 (docket No. 2-13 O 131/20) in connection with a rail ticket booking portal.

The claimant could not choose a gender-neutral form of address when booking a ticket. The choice also could not be left open; rather, the claimant was obliged to commit to either "Mr." or "Ms." in order to use the defendant's service.

The court ruled that the claimant had to be given the choice of a gender-neutral form of address. The claimant’s general personal right also protected gender identity. According to the case law of the Federal Constitutional Court, this applies irrespective of whether the person can or cannot be assigned to the male or female sex. Accordingly, in communications with the claimant and when storing the claimant’s data, the designation 'Mr.' or 'Ms.’ should not be used. Insofar, it was irrelevant whether the person concerned had already initiated a change in the civil status register and whether the gender status “other” (“Divers”) had been entered at the registry office. The protection of general personal rights does not only begin for persons of non-binary sex with their change of civil status. On the other hand, the sued company was not obliged to pay monetary compensation, as the fault of the company was assessed by the court as being minor and merely a reflex of mass standardised processes.

This ruling again highlights the caution employers must exercise not only in communicating with their employees, but also with customers. Especially in the case of MSS (Manager Self Service) or ESS (Employee Self Service) portals, but of course also in the case of online portals directed at customers, care should be taken to choose a gender-neutral form of address. In the context of internal and external communication, gender-neutral greetings such as "Guten Tag" should become the "new normal".

Isabel Hexel

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2. Legal developments – corona update

2.1 Extension of numerous special regulations on short-time work into the year 2021

On 27 November 2020, the Bundesrat approved the Act to Secure Employment [Beschäftigungssicherungsgesetz, BeschSiG], which will come into force on 1 January 2021. Together with the First Ordinance Amending the Short-Time Workers' Compensation Ordinance and the Second Ordinance on the Payment Period for Short-Time Workers' Compensation, this provides for the extension of numerous special regulations on short-time work in order to cushion the blow of the corona crisis into the year 2021.

The following is an overview of the main measures that have been adopted:

Act to secure employment resulting from the COVID 19 pandemic

  • The regulation increasing short-time workers’ compensation (to 70/77% from the 4th month and 80/87% from the 7th month) is being extended until 31 December 2021 for all employees whose entitlement to short-time workers’ compensation arose by 31 March 2021.
  • The existing temporary regulations on additional earnings are being extended until 31 December 2021 insofar as remuneration from low-paid employment taken up during the short-time work is not offset.
  • In addition, the incentive to use periods without work for vocational training is being strengthened further: the reimbursement of half of the social security contributions regulated for such cases is no longer linked to the fact that the qualification must amount to at least 50% of the period without work.

First Ordinance Amending the Short-Time Workers' Compensation Ordinance

  • The facilitated access to short-time work is being extended until 31 December 2021 for companies that started short-time work by 31 March 2021.
  • The possibility of short-time workers’ compensation for temporary workers is being extended until 31 December 2021 for temporary employment agencies that commenced short-time work by 31 March 2021.
  • The full reimbursement of social security contributions during short-time work is being extended until 30 June 2021. From 1 July 2021 to 31 December 2021, 50% of the social security contributions will be reimbursed if the short-time work was started by 30 June 2021.

Second Ordinance on the Payment Period for Short-Time Workers’ Compensation

  • The period of entitlement to short-time workers’ compensation is being extended to up to 24 months for companies that have started short-time work by 31 December 2020, but not beyond 31 December 2021.

Act on the Promotion of Further Education in Structural Change and the Further Development of Educational Support

  • Works councils can continue to conduct works council meetings, adopt resolutions and hold works meetings by telephone and video conference after the turn of the year. Because of the ongoing pandemic, the validity of § 129 BetrVG has been extended until 30 June 2021.

Isabel Hexel

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2.2 Tax relief

In its session on 16 December 2020, the Bundestag conclusively discussed the 2020 Annual Tax Act [Jahressteuergesetz, JStG]. The Act still requires the approval of the Bundesrat. With the JStG 2020, the legislator addresses various issues at the interface of tax and labour law and introduces tax relief to the benefit of employees. In particular, this concerns the new regulation on the so-called home office allowance and the extension of the concession period for corona-related bonus payments.

2.2.1 Home office / remote work

For the years 2020 and 2021, employees will be able to claim a home office allowance of EUR 5 per work day, but limited to EUR 600 in total per year. This facilitates matters insofar, as in the past more stringent requirements were regularly placed on the assertion and deductibility of expenses for a home office. On the other hand, however, the allowance is only to be granted if the commuting allowance for journeys to the first place of work is not claimed. Moreover, it is not granted on top of the employee’s allowance for work-related expenses. For this reason, the allowance will only have a tax effect on employees if the employee’s allowance for work-related expenses of EUR 1,000 is already exceeded due to other income-related expenses and the home office allowance.

Irrespective of this new regulation, the employee can benefit from some administrative simplifications. For example, for reasons of simplification the tax authorities recognise up to 20% of the invoice amount, up to a maximum of EUR 20 per month, as flat-rate income-related expenses for work-based telecommunication expenses without individual proof. This includes basic charges for internet and telephone connections as well as connection charges. Accordingly, a flat rate can also be deducted at a total of 20% (R 9.1 (5) German Wage Tax Regulations [Lohnsteuerrichtlinien - LStR]). With suitable documents, higher income-related expenses can be claimed and deducted (R 9.1 (5) sentence. 2 LStR). In particular, a list of the days on which the employee worked from his home office is conceivable in this context. In the best case scenario, additional confirmation is provided by the employer.

On the employer's side, there is the possibility of reimbursing the employee's outlay for telecommunication expenses tax-free with corresponding proof (§ 3 No. 50 German Income Tax Act [Einkommensteuergesetz, EStG].

The costs of internet access can also be reimbursed without further examination of the scope used for work purposes. In this case, however, the reimbursement would be taxable at 25% to the detriment of the employer (§ 40 (2) sentence 1, No. 2, sentence 2 EStG). The private use of mobile end devices provided by the employer is tax-free in accordance with § 3 No. 45 EStG. If ownership of the devices is transferred to the employee, a flat-rate taxation of the pecuniary advantage by the employer in the amount of 25% would be possible (§ 40 (2) sentence 1 No. 5, sentence 1 EStG).

2.2.2 Corona bonus / contributions to short-time workers’ compensation

In order to relieve the tax burden on employees, the Federal Ministry of Finance had already announced in a press release at an early stage of the corona pandemic that special payments granted to employees between 1 March 2020 and 31 December 2020 would be exempt from wage tax and social security contributions. After the legal regulation for this was created in June of this year with the inclusion of § 3 No. 11a EStG, the concession period is being extended by the JStG 2020 until 30 June 2021.

The exemption from wage tax and social security contributions is limited to a bonus amount of EUR 1,500 per employee. There is no limitation to individual professional groups. It is also possible to grant the allowance in kind, e.g. in the form of goods vouchers. However, the special payment needs to be granted in addition to the agreed and owed wage or salary of the employee, i.e. it truly has to be an additional bonus payment. In addition, the tax authorities require that the aid and support be granted on the basis of a specific reason in order to alleviate the additional burdens caused by the corona crisis. The bonus payments therefore must be granted on grounds of special work carried out by the employees in the corona crisis. A coincidence with other reasons should be avoided. The bonus payment must be recorded separately in the payroll accounting. It is also advisable to include in the payroll accounting a reference to the specific work performed during the corona pandemic.

The explanatory memorandum to the Act expressly states that only the concession period is being extended. In particular, the extension does not permit the granting of a bonus payment of EUR 1,500 tax-free again in the calendar year 2021.

Employer contributions to short-time workers’ compensation are not covered by this concession. They are only tax-exempt under the conditions of § 3 No. 28a EStG. For these contributions, the JStG 2020 provides for an extension of the concession until 31 December 2021. Previously, the tax exemption was only to apply until 31 December 2020.

Marc Krischer, Hanjo Prondzinski

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3. Current affairs

3.1 Legal tech in labour law

For some time now, we at Oppenhoff have been developing legal tech solutions based on the BRYTER application. This can be used to support legal work processes or automate them completely. The use of legal tech is essentially suitable for mapping recurring work processes as well as creating work results.

In labour law, the fields of application of legal tech solutions are manifold. Standardised contracts and other documentation (e.g. works council hearings) can be created just as easily as evaluation sheets (e.g. occupational health and safety checklists, audit sheets for the use of freelancers, etc.).

The main advantages of using legal tech lie in the increase in efficiency and optimisation of process flows, as well as the cost and resource savings.

Our legal tech solutions can be used in a number of ways. Firstly, we use legal tech internally to speed up certain standardised processes. Secondly, we develop tailor-made solutions, i.e. solutions that are geared to the needs and wishes of the client, for direct use by the client itself. The client gains access to the solutions without any need for their implementation in their own IT environment, enabling it to create work results in its own corporate design. We ensure overall conformity with the data protection regulations.

If you would like to know more about this topic and the possible applications of our legal tech solutions in your company, please feel free to contact us.

Jörn Kuhn and Jan Tobias Kollakowski

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3.2 Training courses

In our Oppenhoff Academy, we have been offering training courses for many years now. Our labour law training courses cover all relevant areas and range from special topics to basic introductory training in labour law. This year as well, we have been able to conduct all our training courses virtually, without any restrictions. The focus here was on training managers on the topics of working hours, co-determination by the works council and the use of external workers.

We will also be offering our training courses in the coming year, naturally in both German and English. Please do not hesitate to contact us if you are interested.

Isabel Hexel and Jörn Kuhn

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Dr. Gilbert Wurth

Dr. Gilbert Wurth

PartnerAttorney

Konrad-Adenauer-Ufer 23
50668 Cologne
T +49 221 2091 350
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Jörn Kuhn

Jörn Kuhn

PartnerAttorneySpecialized Attorney for Employment Law

Bockenheimer Landstraße 2-4
60306 Frankfurt am Main
T +49 69 707968 140
F +49 69 707968 111

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Dr. Alexander Willemsen

Dr. Alexander Willemsen

PartnerAttorneySpecialized Attorney for Employment Law

Konrad-Adenauer-Ufer 23
50668 Cologne
T +49 221 2091 551
F +49 221 2091 333

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Kathrin Vossen

Kathrin Vossen

PartnerAttorneySpecialized Attorney for Employment Law

Konrad-Adenauer-Ufer 23
50668 Cologne
T +49 221 2091 352
F +49 221 2091 333

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Isabel Hexel

Isabel Hexel

PartnerAttorneySpecialized Attorney for Employment Law

Konrad-Adenauer-Ufer 23
50668 Cologne
T +49 221 2091 348
F +49 221 2091 333

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Anja Dombrowsky

Anja Dombrowsky

PartnerAttorney

Bockenheimer Landstraße 2-4
60306 Frankfurt am Main
T +49 69 707968 184
F +49 69 707968 111

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Alexandra Groth

Alexandra Groth

Junior-PartnerAttorney

Konrad-Adenauer-Ufer 23
50668 Cologne
T +49 221 2091 341
F +49 221 2091 333

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Annabelle Marceau

Annabelle Marceau

Junior-PartnerAttorney

Konrad-Adenauer-Ufer 23
50668 Cologne
T +49 221 2091 347
F +49 221 2091 333

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Cornelia-Cristina Scupra

Cornelia-Cristina Scupra

Junior-PartnerAttorney

Bockenheimer Landstraße 2-4
60306 Frankfurt am Main
T +49 69 707968 215
F +49 69 707968 111

Email