Labor Law

Effective representation in employment law is, above all, a matter of good timing, because in employment law, much is decided in the first few days and weeks after a dispute arises. For example, after receiving a notice of termination, you have three weeks to file a lawsuit—after that, the termination is considered valid, even if it was flawed. Even in cases of unpaid wages, limitation periods set forth in the employment contract or collective bargaining agreement often apply, causing claims to expire after just two or three months.

Whether a termination is valid often depends not on the reason, but on formalities: who signed it, whether the works council was involved, and whether the notice period is correct. The same applies to written warnings, mutual termination agreements, and employment references—the mistakes are rarely where you’d expect them to be.

I represent employees, both in and out of court and before labor courts. My approach can be summed up in three sentences.

First: The calendar comes first, then the facts—what good is the best justification if the deadline has passed?

Second: You'll get an assessment, even if it's uncomfortable; I'll tell you up front that this process isn't worth it.

Third: We clarify the cost before any work is commissioned.

An Overview of the Topics

Termination — Notice Periods and Procedural Errors

Whether a termination is valid is rarely determined by the stated reason. First, the formalities matter: Who signed it, and were they authorized to do so? Is the written form requirement under § 623 BGB met—a termination via email, instant messaging, or as a scanned signature does not satisfy this requirement. When was it received? Was the works council involved in accordance with § 102 of the Works Constitution Act (BetrVG)? According to § 622 of the German Civil Code (BGB), the standard notice period is four weeks, effective on the 15th or at the end of the month, and is extended for the employer based on the length of employment.

Protection against dismissal under Section 1 of the German Employment Protection Act (KSchG) applies only after more than six months of employment and only if the law applies to the company at all. Section 23 of the KSchG generally requires more than ten employees for this to apply, with part-time employees counted on a pro-rata basis. In addition, there is special protection in cases of pregnancy, parental leave, severe disability, or holding a position on the works council.

The most important figure on this page: three weeks from receipt of the written notice of termination (Section 4 of the German Employment Protection Act (KSchG)). If a person does not file a lawsuit within this period, the termination is deemed effective under § 7 KSchG—even if it was actually invalid. In the case of termination without notice, the two-week period specified in § 626(2) BGB, within which the employer was required to issue the termination, also applies.

I therefore first examine the grounds for termination, the notice period, the formality, and the applicable protection against wrongful termination—and only then whether the grounds are valid and whether they can be proven. The order is important because a procedural error can invalidate a termination that is well-founded in substance.

Employment Contracts and Fixed-Term Contracts — Content and Validity

The provisions in an employment contract are not valid simply because they are included there. Pre-formulated clauses are subject to content review under Sections 305 through 310 of the German Civil Code (BGB)—a linguistically clear provision may still be invalid. Disputes usually arise over the same issues: job duties and transfers, probationary periods, bonuses and variable compensation, overtime, secondary employment, reimbursement clauses for continuing education, and statutes of limitations.

As of August 1, 2022, employers are required to document significantly more employment conditions in writing (Section 2 of the NachwG), within phased deadlines. Those who fail to do so risk a fine of up to 2,000 euros. For existing employment relationships, the following applies: Upon request, the documentation must be provided within seven days or one month.

When it comes to fixed-term contracts, two things must be distinguished: the term of the contract and the validity of the fixed term itself. Without an objective reason, Section 14(2) of the German Part-Time and Fixed-Term Employment Act (TzBfG) permits a maximum term of two years with no more than three extensions, and prior employment with the same employer may preclude this entirely. A three-week deadline applies here as well: Anyone wishing to challenge the fixed-term contract must do so within three weeks of the agreed-upon end date, in accordance with § 17 of the TzBfG.

The first thing I determine is the source of each provision: employment contract, collective bargaining agreement, company agreement, or law. Only then can it be determined which rule actually applies—and what replaces it if it is invalid.

Compensation and Overtime — Entitlement and Proof

Unpaid wages, unpaid overtime, or a canceled bonus can quickly add up. In court, however, simply stating that you regularly worked longer hours is not enough. What matters is when and for how long you worked—and whether the employer ordered, approved, tolerated, or caused the overtime through the volume of tasks assigned. Your own records can help, but they do not determine the outcome of the case on their own.

The claim arises from Section 611a(2) of the German Civil Code (BGB), from the contract, from the collective bargaining agreement, or from the Minimum Wage Act, the minimum threshold of which, pursuant to Section 3 of the Minimum Wage Act (MiLoG), may not be undershot.

The most critical issue is the statute of limitations. These are specified in the employment contract or collective bargaining agreement, often last only two or three months, and cause the claim to expire—long before the standard three-year statute of limitations under Sections 195 and 199 of the German Civil Code (BGB) even comes into play. Anyone who waits until after leaving the company to sort things out and then settle accounts is usually too late.

When it comes to bonuses and performance-based compensation, a great deal depends on whether a condition has been met—and who is responsible for proving it. When it comes to unequal treatment, the Pay Transparency Act and Section 7 of the General Equal Treatment Act (AGG) come into play; claims under Section 15 of the AGG must be asserted within two months, and a lawsuit must be filed within three months.

That's why I start by reviewing the invoices, the contract, and the time records—and look for statutes of limitations. After that, it becomes clear what can still be enforced and who is responsible for providing what evidence.

Working Hours, Vacation, and Remote Work — Limits and Expiration

Flexible models do not eliminate statutory limits. According to Section 3 of the Working Hours Act (ArbZG), eight hours per workday are permitted; ten hours are allowed only if the average over the compensation period returns to eight hours. Section 5 of the ArbZG requires eleven hours of uninterrupted rest. Deviations based on collective bargaining agreements or industry-specific regulations may alter these requirements.

On September 13, 2022 (1 ABR 22/21), the Federal Labor Court derived from Section 3(2)(1) of the Occupational Safety and Health Act (ArbSchG) the obligation to record hours worked. However, the ruling does not specify exactly how this must be done—in cases involving trust-based working hours, remote work, and various systems, the specific arrangements and employee participation remain open.

According to Section 3 of the German Annual Leave Act (BUrlG), the statutory minimum annual leave is 24 business days, which amounts to 20 working days for a five-day workweek. In recent years, the rules regarding the expiration of unused leave have been clarified in favor of employees: Unused leave no longer automatically expires at the end of the year. The employer must first specifically notify the employee of the remaining balance and the impending expiration and urge the employee to take the leave. If the employer fails to do so, the entitlement remains in effect—often for years.

So anyone who thinks their 2023 vacation days are gone should have that checked before writing them off. To do that, I’ll look at the work schedule, time tracking, and, above all, the communication regarding vacation time.

Sickness and Continued Pay — Notice and Evidentiary Value

Being sick does not exempt you from all obligations. According to Section 5 of the EntgFG, you must immediately report your inability to work and its expected duration. According to Section 3 of the EntgFG, continued pay is provided for up to six weeks. In the case of multiple illnesses, it depends on whether the new illness began only after the previous one ended or whether the periods overlapped—this determines whether the six-week period starts anew.

As of January 1, 2023, sick leave certification for those with public health insurance is processed electronically: The employer retrieves the data from the health insurance provider. The requirement to report sick remains unaffected.

A medical certificate carries significant probative value but is open to challenge. On December 13, 2023 (5 AZR 137/23), the Federal Labor Court addressed the question of when a conspicuous temporal coincidence between the notice period and the certified inability to work undermines this evidentiary value. This does not give rise to a general presumption against the sick employee; it depends on the circumstances.

If continued pay is denied, I will review the start dates, duration, and overlap of the illnesses, the type of documentation provided, and the facts on which the employer bases its objection. In doing so, we will also clarify which health-related details are actually necessary for the dispute—and which are not.

Warning Letters and Allegations at Work — Response and Evidence

A written warning documents what is alleged to have occurred and paves the way for termination for cause. Whether it is effective depends on whether the behavior in question is specifically described, accurately assessed, and accompanied by a clear warning. An inaccurate written warning in an employee’s personnel file can hinder career advancement—but an employee does not have a right to have it removed simply because of every discrepancy.

The situation becomes delicate when allegations involve things like manipulating work hours, disclosing trade secrets, harassment, or financial crimes. Anyone facing such an allegation is not required to provide their own account immediately. There is no general obligation to explain the substance of every accusation—whether and to what extent one chooses to comment depends on the circumstances, the risk of incriminating oneself, and the stage of the proceedings.

In the case of a dismissal based on suspicion, the employer is required to hold a hearing, which is part of the investigation process. At the same time, questions arise regarding data protection, the involvement of the works council, and whether internal investigations are admissible at all.

As of July 2023, employers with 50 or more employees—as a general rule—must establish internal reporting channels. The Whistleblower Protection Act prohibits retaliation against protected whistleblowers and, under certain conditions, shifts the burden of proof.

Before explaining anything, I distinguish between established facts, suspicions, and mere opinions. Only then can I determine which statements are necessary—and which create avoidable risks.

Labor Court Proceedings — Deadlines, Costs, and Settlements

The labor court operates differently from a civil court. Cases involving termination and fixed-term contracts are governed by three-week deadlines, while claims for payment are subject to statutes of limitations. After the complaint is filed, the first step is a conciliation hearing; only if no agreement is reached there does the actual proceeding follow, involving written submissions and, if necessary, the taking of evidence.

There is no requirement to be represented by an attorney in the first instance. However, there is a peculiarity regarding the rules on costs that surprises many: According to Section 12a(1) of the Labor Court Act (ArbGG), the prevailing party does not receive reimbursement for its attorney’s fees from the opposing party. Each party pays its own attorney’s fees—even the party that wins the case entirely. Court costs are based on the amount in dispute and are often waived entirely in the event of a settlement. In an action for protection against wrongful termination, the amount in dispute is typically up to three gross monthly salaries.

A severance payment is not automatically granted simply because an employee was terminated or filed a lawsuit. It may result from an agreement, a social plan, Section 1a of the German Employment Protection Act (KSchG), or a judicial termination pursuant to Sections 9 and 10 of the KSchG. There is no statutory formula for determining the amount.

A settlement usually covers more than just money: a reference, time off, remaining vacation days, variable compensation, and sometimes even the wording of the reason for termination—which can be significant when it comes to unemployment benefits. Which of these items are included in the settlement is decided in advance, not during the meeting.