Law on the documentation of conditions governing an employment relationship (“Documentation Act”): EU Working Conditions Directive transposed into national law

The German legislator even goes beyond the EU Directive’s requirements and continues to require the written form. A digital implementation of the requirements is therefore not possible (we reported  ››).

The new provisions will come into effect on August 1, 2022 and will also apply to existing contracts. From this date, the employer has additional obligations to provide evidence to the employee in addition to the obligations set out in Art. 2 of the Documentation Act’s old version:

• Term of the probationary period,
• agreed breaks and rest periods,
• information on a shift system,
• information on the requirement of overtime and its conditions,
• special information in the case of agreed on-call work,
• entitlement to information about continuing education provided by the employer,
• details of a company pension scheme through the pension fund,
• information on the period for filing an action in accordance with Art. 4 of the German Dismissal Protection Act (Kündigungsschutzgesetz - KSchG) in the event of dismissal by the employer,
• extended information requirements in the case of secondments.

The deadlines for implementing the Documentation Act’s new provisions are short and staggered. As early as on the 1st day of the commencement of work, evidence must be provided of the contracting parties’ names as well as the amount of remuneration and the working hours. On the 7th calendar day, evidence must be provided of the start, end, place of work, job description, probationary period, details of on-call work and overtime arrangements. The employer has 1 month to implement the Documentation Act’s remaining requirements.

Existing employees have to be informed in writing about the essential working conditions only if they request the employer to do so. A period of 7 days applies in such case. The legal consequences of a violation of the Documentation Act will also be changed. In future, a violation of the Documentation Act will be punishable by a fine of EUR 2,000.00.
Due to the new law, the German Temporary Employment Act (AÜG) will also be subject to changes. In response to a corresponding request from the temporary employee, the hirer must give reasons why it does not wish to conclude an employment contract with the temporary employee within one month of receiving the letter. The response can be provided in text form.

Our practical tip

Please carefully review your employment contracts. This applies to new as well as to existing employment contracts. Even if the law is now far from labor law practice and one can no longer speak of “new work” in this context, the requirements must be complied with in future in order not to expose yourself to the risk of repeated fines.

On July 21, 2022, Baker Tilly will hold an online seminar (in German) on this topic.

Please feel free to register right here ››