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Why should you have your employment contract reviewed?

The employment contract regulates the conditions at the future workplace. Important contents are e.g:

• the salary
• Vacation entitlement
• Dealing with overtime
• Notice period

Since freedom of contract applies to the employment contract, the two contracting parties - i.e. the employee and employer - are largely free to determine the content. As a rule, however, the employer draws up the contract and the employee simply signs it.nullTo ensure that the contract is fair for both parties, you as an employee should check the employment contract carefully or have it checked. This is because there are always clauses in the employment contract that are to the (financial) disadvantage of the employee. This does not necessarily have to be done with malicious intent, but can also be due to the company adopting an outdated standard contract, for example.

This will inform you if the employment contract:

• contains formulations that are to your disadvantage,
• leaves out important content or
• violates legal provisions and is therefore possibly even (partially) invalid.

Have your employment contract checked: important content in the employment contract

In principle, the employer and employee are free to agree on the content of the employment contract. However, there are some legal provisions that the employer may not disregard. These include, for example, the Working Hours Act, which stipulates the maximum duration of working hours.

The following contents can be found in most employment contracts:

Start and duration of the employment relationship

First of all, the employment contract should specify the exact date on which the employment relationship begins.nullAbove all, however, you should check whether you are employed on a fixed-term or permanent basis. The following applies: If the employment contract does not state anything about the end of the employment, then it is an open-ended employment relationship.nullWith a fixed-term employment contract, you are only employed for a certain period of time. After this period, the employment relationship ends automatically without the need to give notice.nullIt is important to know that there are a number of guidelines that employers must adhere to when it comes to fixed-term contracts. For example , a fixed-term contract without a reason may last a maximum of two years.

Activity

The description of your job should definitely match what was agreed in the interview.

• Concrete formulations protect you from being assigned to other, unagreed tasks that have little to do with your actual job.
• Broad formulations, on the other hand, have the advantage that they reduce the risk of possible dismissal for operational reasons.

The employer has particular leeway if clauses are included such as: "The employer reserves the right to assign the employee to another job of equal value."nullYou should also pay attention to the title of your future position. For example, if you are described as a senior employee, this should also be discussed in the interview and you should be remunerated accordingly. This is because some laws on employee protection, such as the Working Hours Act, do not apply to senior employees or only apply to a limited extent.

Place of work

The same applies to the place of work as to the activity: this should be clearly stated in the employment contract, otherwise the employer can assign you a place of work. When checking your employment contract, check whether it contains a transfer clause, for example:null"The employer reserves the right to deploy the employee to another place of work for operational reasons while safeguarding his interests."nullIn this case, the employer could, for example, transfer you to another location in Germany.

Working hours

The regulations on working hours should also be set out in writing in the employment contract. In addition to the number of hours per week, this also includes the location of working hours, e.g. that work must be performed Monday to Friday between 09:00 and 18:00. If this is not specified, the employer could, for example, order the employee to work on a Saturday.

In any case, the employer must comply with the Working Hours Act, which contains numerous rules to protect the employee. For example, a maximum 40-hour week may be agreed.

Overtime

If the employment contract (or collective agreement or works agreement) does not mention overtime, you are not obliged to work it, except in emergency situations. But even if they are mentioned in the employment contract, there are legal limits to the amount of overtime you can work.nullPay particular attention to how overtime is compensated in the employment contract: i.e. whether you will receive time off in lieu or additional payments. It is also possible to stipulate that a certain number of overtime hours (e.g. ten per month) are already included in your normal salary.

Disadvantageous regulations that you should be aware of

When it comes to employment contracts, there is sometimes talk of "hidden traps". This refers to provisions that are disadvantageous for the employee. Without legal expertise, it is often not so easy to recognize these. For this very reason, it is advisable to have the employment contract checked by a lawyer.nullSome examples:

• Exclusion and expiry periods: These are regulations that state that you must make claims arising from the employment relationship (e.g. for special payments) within a certain period of time. After this period (e.g. a few months), your claim expires.
• Contractual penalties: With such a regulation, you are obliged to pay a penalty if you do not comply with certain points of the employment contract, e.g. if you do not start the job or do not comply with the notice period.
• Flat-rate regulation on overtime: Such regulations state that overtime is compensated in a lump sum with a certain amount (or the basic salary) and not individually per hour. Important: A maximum number of overtime hours must be specified here (e.g. up to ten hours per month), which are covered by the lump sum.
• Transfer clause: This means that the employer may, at its discretion, also assign you to a different place of work.

What should you do if you are not satisfied with your employment contract?

Let's assume that the lawyer has checked the employment contract and pointed out problematic sections before you signed it. What can you do now? In principle, there are two cases:

1. the employment contract contains inadmissible content

It is the exception that the entire employment contract is invalid. This is the case, for example, if the employer or employee are not legally competent.nullIt is often the case that certain contents are invalid, but the rest of the contract remains in place. An example of this would be a general prohibition on taking up secondary employment. In this case, the employer cannot enforce this provision as it is not permitted by law.nullThis means that such content usually has no consequences for you. Of course, you can still point this out to your employer if you wish, but there are usually no disadvantages for you if you do not do so.

Salary and special payments

One of the most important points for the employee is the salary. The employment contract should state how much this is and when it will be paid. If you are employed under a collective agreement, then it is sufficient to state the pay group under the collective agreement.nullWere special payments, such as vacation or Christmas bonuses, promised in the job interview? Then you should check the employment contract to see whether these are mentioned there and the specific amount.nullIt is also important that the special payments are not subject to a reservation of voluntariness or revocation. This means that the employer can refuse payment under certain circumstances.

Vacation entitlement

By law, you are entitled to at least four weeks' vacation per year. With a 5-day week, that is 20 working days. This also applies if vacation is not mentioned in the employment contract. It is important to note that if you have agreed more than the statutory four weeks' vacation with your employer, this should be stated in your employment contract, otherwise you will not be able to claim it.

Notice periods

In the case of an open-ended employment contract, the following applies: By law(BGB § 622), the employer must observe a notice period of at least four weeks (this increases the longer you work for the company). Employees and employers can also agree longer notice periods in the employment contract. However, the notice period for the employee must never be longer than the notice period for the employer.nullAs an employee, a long notice period (three months or more) tends to be unfavorable for you. You should definitely have this checked in your employment contract and renegotiate it if necessary.nullA shortened notice period of two weeks applies during the probationary period. The length of the probationary period can also be found in the employment contract.

Competition clause

A non-competition clause always applies during the employment relationship. This means that while you are employed by a company, you may not work for a competitor or compete with the company through your own activities.nullIn some cases, the employment contract contains a so-called post-contractual non-competition clause. This means that you are not allowed to work for a competitor for a certain period of time after your employment relationship has ended. You are entitled to financial compensation for this. In any case, you should have such a clause in your employment contract checked, as it will make it difficult for you to find another job later on.

Secondary employment

Sometimes your employment contract contains a clause stating that you must inform your employer before starting a secondary job. However, the employer can only prohibit this in a few cases, for example if the secondary employment has a negative impact on your work performance.

2. the employment contract contains permissible but disadvantageous content for you

There are also legally permissible contents that are disadvantageous for you. This includes, for example, the transfer clause mentioned above. If you have not yet signed the employment contract, it may be worth negotiating with the employer to change these passages.nullIt is important to weigh things up:

• How great are the disadvantages of the regulation in question?
• How important is the job for me?
• How important am I to the new employer?
• How much room for negotiation do I have?

It may be strategically wise to address only the most important points.