Amending the Evidence Law – Actions Needed for Employers

Amendment of the Evidence Act as of August 1, 2022

The Evidence Act states that employers must provide the employee with the essential components of the employment relationship in writing. Progressing Higher requirements since August 1, 2022 from before:

First of all, the Evidence Act applies not only to employees, but also to apprentices and everyone who is subject to the scope of the Minimum Wage Act, that is, who should pay the minimum wage.

According to the Evidence Act, the employee must receive a record of the basic contractual terms (Article 2 Paragraph 1, Q2 No. 1.7, 8 NachwG) signed by the employer on the first day of the employment relationship in the most recent, at most one week after the beginning of the employment relationship, Further information (Paragraph 2 Paragraph 1, Q2 No. 2-6,9,10 NachwG) must be received and finally within one month thereafter. Information according to Clause 2, Clause 1, S.2 NachwG.

Thus the legislator distinguishes between the most important information (names of the contracting parties, wages and working hours), then the specific appointment of the employee (location, duration, organization of working hours) and finally information about leave, additional training, company pensions. Schemes and procedures for termination of employment.

In this arrangement, which is set chronologically by the legislator, the weight of the information must also be taken into account.

In addition, it must be strictly ensured that the proof cannot be provided in electronic form but rather is left out. So it applies written form!

So far, the following information has already been mandatory:

  • Name and address of the contracting parties
  • Date of commencement of the business relationship
  • Duration of the employment relationship in the case of a fixed-term contract
  • Workplace
  • Job title
  • Composition and amount of wages
  • work time
  • Duration of annual leave
  • Notice periods
  • General reference to applicable collective agreements, company and service agreements

A new addition Since 01 August 2022 the following information:

  • The end date of the employment relationship in the case of a fixed-term contract
  • If necessary, free choice of work site by the employee
  • Duration of any agreed trial period
  • the composition and amount of remuneration (including overtime pay, supplements, allowances, bonuses, etc.), with separate disclosure required; Next to the due date and payment type
  • Agreed working hours, rest and rest periods, if applicable, information on shift work, shift work, shift tempo, and shift change requirements
  • Work-on-demand agreements, if applicable
  • If possible, the possibility of requesting additional work and its requirements
  • No entitlement to any training provided
  • In the case of company pension schemes, the name and address of the pensioner (unless the provider is obligated to do so himself)
  • CAUTION: The procedure to be followed by the employer and the employee upon termination of the employment relationship: Notification at least of the written form requirements and deadlines for the termination of the employment relationship as well as an indication of the deadline for filing an action for protection against unfair dismissal

à If this notice is not properly served/not given, the fictitious illusion of Section 7 KSchG will apply: a notice of termination is legally effective after the three-week period for filing a procedure has expired after the notice of termination has been received

In the case of an intern, at least the following information must be included in the transcript in accordance with Section 2 (1a) of the NachwG:

  • Name and address of the contracting parties
  • Learning and training objectives followed with training
  • Beginning and duration of training
  • Duration of regular daily training
  • Payment and bonus amount
  • duration of vacation
  • General reference to applicable collective agreements, company or service agreements

Changes to the Evidence Act can be traced back to the European Union Working Conditions Directive. The purpose of the Evidence Act is to create more transparency and, above all, to provide the employee with written evidence of the components of the employment relationship. This would facilitate the substantiation of claims arising from the employment relationship.

If the requirements are not met, not completely, correctly or in a timely manner, the employer faces a fine of up to €2000.00, as this is now an administrative offence.

In this regard, l Labor relations established after August 1, 2022it is necessary to work towards compliance with the above procedures in accordance with Section 2 of the Evidence Act.

for Business relationships that existed prior to August 1, 2022a transitional provision applies:

According to Article 5, the minutes are made only at the request of the employee. This obligation does not apply if there is already a written employment contract that contains the information required under Section 2 Paragraph 1 Sentence 2 Numbers 1-10.

Any change in the terms of an employment contract that is not due to a change in law, a change in collective agreements or the like must also be sent in writing.

Any contractual (individual) deviation on the employee’s expense is excluded! This is a mandatory provision of the Labor Code.

As an employer, you should incorporate these new requirements into your employment contracts as soon as possible if not all information is part of the contract text. For employees, it means more transparency and legal certainty.

Due to the impending fine, you should definitely pay attention to these requirements!

as such Labor law attorney Attorney Sabrina Lindwehr is available to answer any questions you may have!

You can reach us as follows:

Lindwehr Law Firm
Munsteraner Strasse 2
49809 Lingen (Ems)

Tel: 0591 – 31 96 29 00

Fax: 0591 – 31 96 29 09

Email: info@lindwehr.com

www.lindwehr.com

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