Why are labor laws important
What will be important in labor law in 2018
Every year again - the labor law practitioner dares to look into the next year. What will change in labor law in 2018 and what will be important? So much can already be revealed: Not that little at all.
First of all, there are various milestones due to legal regulations that have already been adopted. So it is certain that these will come.
From January 1, 2018, for example, the equal pay principle according to the new Temporary Employment Act will be mandatory for temporary workers who have not been working without interruption or with interruptions since April 1, 2017 (on this day the new Temporary Employment Act came into force) were left to the same borrower for three months. In the event of a violation of the equal pay principle, there is a risk of fines and the borrower runs the risk of the temporary worker in question suddenly ending up on his payroll - including all employee rights. For temporary workers in the above sense, the 18-month maximum leasing period also expires on September 30, 2018. Corresponding legal consequences threaten here too. Depending on the individual case, however, there are also design options.
Salaries become transparent
From January 6, 2018, employees will also have a right to information under the new Pay Transparency Act. This right is at the heart of the law, which has already come into force, and is aimed at communicating the statistical median of the gross remuneration of comparable colleagues of the opposite sex. In this respect, however, companies with usually 200 or fewer employees can breathe a sigh of relief. Your employees do not have this right to information. The information can be refused anyway if the comparison activity is not carried out by at least six employees of the opposite sex. Then you only have to be informed about the criteria and procedure for determining the remuneration. If there is a works council, requests for information must generally be asserted through it.
Speaking of the works council: the regular works council elections will take place again between March 1, 2018 and May 31, 2018. Employers who want to lay off staff should therefore consider postponing such measures until after the works council election. If the measure is subject to social plan, the works council could be tempted to negotiate particularly high social plan benefits in order to distinguish itself in front of its electorate. In addition, it can be interesting for employees who are about to be terminated to apply for election. Because they enjoy special protection against dismissal. It should also be noted that the threshold values under works constitution law (e.g. with regard to the required number of works council members or the number of works council members to be released) include temporary workers. An election to the works council always offers design options.
New EU General Data Protection Regulation applies
Another exciting date is May 25, 2018. This is the day on which the General Data Protection Regulation adopted at European level comes into force. As a result, data protection law will break away from its shadowy existence across Europe. From this point in time, violations of data protection law are sanctioned with very heavy fines (up to 4 percent of global group sales!).
For the sake of completeness, it should also be mentioned what will not change in 2018: The statutory general minimum wage will remain (at least according to the current legal situation) until January 01, 2019 at EUR 8.84 per hour.
As far as the outlook in the case law is concerned, it is particularly interesting whether the Federal Constitutional Court will decide in 2018 on the question of whether the categorical prohibition of previous employment in the case of unfounded fixed-term contracts is unconstitutional. As is well known, according to the case law of the BAG, an employer can limit an employment contract without a reason if the employee in question has not previously been employed by him for more than three years. However, some labor and state labor courts consider this case law to be incompatible with the Part-Time Fixed Termination Act, as the wording of the law clearly does not allow any prior employment if a fixed-term contract is to be given for no reason. The Federal Constitutional Court has to decide whether this interpretation is correct and whether the law is constitutional according to this understanding. Until there is legal certainty, caution is advised in the case of unfounded fixed-term contracts with employees who have previously been employed by the employer. Even if the previous employment was more than three years ago, you are only on the safe side as an employer if there is a reason for a fixed-term contract.
Time limits will play a role
In general, the subject of “fixed-term fixed-term” could move back into the focus of the legislature when it comes to the so-called GroKo. In its election program, the SPD called for the abolition of the time limit without any objective reasons. This election manifesto also contains further legal changes in favor of employees. There should be further tightening of temporary employment and the abuse of contracts for work and services. Also on the agenda of the SPD: The right of return of part-time workers full-time. On the other hand, a more flexible working time law after the failure of “Jamaica” is likely to be off the table for the time being, as is the easing of the documentation obligations under the minimum wage law. If the aforementioned tightening of labor law comes, the FDP will in any case have achieved the opposite of what it has cited as the reason for allowing “Jamaica” to fail: instead of an (economic) liberal policy change, there will be more regulation of the Labor market and less “air to breathe” for companies.
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