Handlungsbedarf für Arbeitgeber: Neues Nachweisgesetz, neue Arbeitgeberpflichten

On June 23, 2022, the German Bundestag passed the new evidence law, which is... 01.08.2022 comes into force, adopted (cf. BT printing 20/1636). This results in a significant need for employers to take action when drawing up employment contracts.

Reason for the change in the law: European Working Conditions Directive

The reason for the new verification law is the Working Conditions Directive (EU) 2019/1152, which was passed by the European Parliament and the Council on June 20, 2019. The Working Conditions Directive aims to improve working conditions by promoting transparent and predictable employment while ensuring the adaptability of the labor market. Article 22 of the Directive requires Member States to adopt the laws, regulations and administrative provisions necessary to comply with the requirements of the Working Conditions Directive by July 31, 2022.

More bureaucracy expected

Unfortunately, the new verification law passed by the German legislature does not provide any relief or relief for companies. On the contrary: the new verification law increases the organizational requirements for companies. In addition to a changed catalog of contractual conditions that must be verified, violations will in future be treated as an administrative offense.

Obligations to provide proof require written form

In Germany, the recording of the essential contractual conditions has actually been required by the Evidence Act (NachwG) since 1995. However, violations of the provisions of the NachwG have so far been meaningless because the NachwG does not regulate any sanctions. That will change in the future.

The new Evidence Act stipulates that corresponding evidence will also be required in the future in written form, so on one handwritten signed paper document must be handed over to the employees. In the future, each individual violation can also be punished with a fine of up to €2,000.00.

Extension of the proof requirements

In addition, the new proof law provides for the following additions to the existing proof obligations:

With regard to wages, additional information on remuneration for overtime and the type of payment (cash or non-cash). In addition, all components of the (total) remuneration (e.g. allowances, surcharges, bonuses, etc.) must be stated separately with an indication of the due date;
Agreed rest breaks and rest periods;
If shift work has been agreed, the shift system, shift rhythm and requirements for shift changes;
In the case of on-call work, among other things, the time frame, determined by reference days and reference hours, set for the performance of the work;
If agreed, a reference to the possibility of ordering overtime and its requirements;
If agreed, the right to further training provided by the employer;
If the employer promises the employee a company pension scheme through a pension provider, the name and address of this pension provider;
The procedure to be followed by the employer and employee when terminating the employment relationship, at least the written form requirement and the deadlines for terminating the employment relationship, as well as the deadline for filing an action for protection against dismissal;
Duration of the probationary period, if agreed;
Extended information requirements in connection with a stay abroad in cases of posting;
Reference to any applicable collective agreements, company or service agreements.

Tightening of the procedure

In addition to the substantive verification requirements, the new Evidence Act also provides for changes to the procedure. Employees will in future have to be informed about the essential contractual conditions (name and address of the parties, amount of wages and agreed working hours) on the first day of work, instead of within one month of the start as was currently the case. Staggered deadlines are provided for the provision of further proof requirements in accordance with the list above. In addition, the new Evidence Act stipulates that existing employees can request that their employer provide them with a transcript containing most of the information to be verified within seven days of the request. The other information must be provided no later than one month after receipt of the request.

Legal uncertainty

A large number of the proof requirements regulated in the new Evidence Act present considerable legal uncertainty in practice. This applies in particular to the specification of agreed rest breaks and rest periods as well as to the procedure to be followed when terminating the contract.

The latter is completely new and in practice some questions are already arising. For example, what does the legislator mean when he says in the wording of the law that “procedures to be followed" speaks? For example, does the employer have to inform the employee that he may have to consult the works or staff council before giving notice of termination or that he must first apply for the approval of the inclusion office for an employer with a severe disability? In any case, according to the justification for the law, a reference to the three-week filing period according to Section 4 of the Dismissal Protection Act should be sufficient, but the justification for the law is silent about the “procedure to be followed”.

Notes for practice

The new Evidence Act does not require that the evidence necessarily be provided through an appropriate design of the employment contract itself. Therefore, every company should first consider how the new requirements of the Evidence Act will be implemented from August 1, 2022 - in the employment contract itself or, for example, as an information sheet to the respective employees.

With regard to the implementation of the obligations to provide evidence, it remains to be seen how the labor courts will specify the new obligations. However, this does not allow employers to postpone. Rather, the new regulations will apply from the beginning of August 2022, which is why employers should act now and adapt their current contract documents taking into account the regulations of the new Evidence Act. Please contact us at any time about this. We are happy to help.

Melanie Maier, Specialist lawyer for labor law