Exclusion periods in the employment contract - when claims expire or not!
The recent change in the law requires the adjustment of the exclusion period clauses in employment contracts. Exclusion periods (decay periods) are provisions that lead to the expiry of claims if they are not asserted within a certain period. Such deadlines can be included in the employment contract, in company agreements or collective agreements or in the church labor law regulations decided in the so -called third path.
Unlike the statute of limitations of a claim - the failure to comply with an exclusion period is a legal objection that should be observed "ex officio" and to which the debtor does not have to refer to. If the applicability of an exclusion period is determined, the creditor must present the facts that result from the fact that a claim has been preserved despite the exclusion period (e.g. the timely assertion). If this is omitted, the lawsuit is undecided. With decaying claims, it can no longer be taken into account, nor can it against dilapidated claims.
1. What do I need to know?
So far, according to § 309 No. 13 BGB AF, the employee has been asked for the report or explanation of the employee to conclude with the employee's own name. written form according to Section 126 (1) BGB was
Section 309 No. 13 BGB has been re -regulated with effect from October 1, 2016 through the law to improve the civil law enforcement of consumer -protecting provisions of data protection law (BGBl. I 2016, p. 233).
According to § 309 No. 13 lit. b BGB NF, an employment contract for advertisements and explanations that are to be submitted to the employer may not be agreed as the text form . The text form within the meaning of Section 126b of the German Civil Code is sufficient, for example, by an email or fax . In the future, the employee's own signature of the employee, under his advertisement or explanation, will no longer require the employer.
This legal new regulation has an impact on exclusion clauses agreed in employment law.
2. Are exclusion period clauses in contracts that were concluded before October 1, 2016?
No!
For employment contracts concluded before October 1, 2016 (so -called "old contracts"), the new version of Section 309 No. 13 BGB generally has no effects (see Art. 229 Section 37 EGBGB). The formerly agreed written form requirements in exclusion clauses remain effective.
3. Do new employment contracts that are concluded after September 30, 2016 have to be updated?
Yes!
These exclusion period clauses must expressly observe the new legal situation. So far, it has corresponded to the employment contract practice that the claims expire if they are not asserted in writing within a certain period (at least 3 months) after the due date.
Such a regulation is no longer compatible after September 30, 2016 with § 309 No. 13 BGB NF. As a result of the amendment to the law, the exclusion period regulation may no longer contain an obligation to assert claims in writing.
4. Does this also apply to exclusion periods in collective agreements?
No!
In the context of collective agreements, exclusion periods that provide a written assertion of the claims can still be effectively agreed after September 30, 2016 (see Section 310 (4) sentence 1 of the German Civil Code).
Nevertheless, you should be particularly careful if these collective bargaining contracts should not apply, especially due to mutual collective bargaining, but in particular through a contractual reference clause.
In this case, you have a need for adjustment for or closed employment contracts to be closed after September 30th.
5. Is this change in the law also relevant if old contracts are only changed/supplemented according to September 30th?
Yes!
If the parties to the employment contract intend to change or supplement old contracts after September 30, 2016, caution is advised.
According to the case law of the Federal Labor Court (cf. BAG, judgment of 19.10.2011 - 4 AZR 811/09; v. 18.11.2009 - 4 AZR 514/08), an old contract can be "convert" by a contract change after September 30, 2016. This is particularly the case if the parties to the employment contract change individual contractual terms after September 30, 2016 and at the same time accept a passage in the change agreement, according to which the other agreements of the employment contract remain unaffected by this change. In this case, the parties to the employment contract have also included the original employment contract in their legal will, so that the legal law applicable from October 1, 2016 (Section 309 No. 13 BGB NF) must be taken into account.
We therefore strongly advise you to adapt an agreed exclusion clause to the requirements of § 309 No. 13 lit. b) BGB NF in the course of the change of an old contract.
6. Now you have to act!
In this context, the exclusion period clause should be checked as a result of further special features (e.g. according to Milog and Aentg) and if necessary adjusted.
