According to the Federal Fiscal Court (BFH, VI R 20/20), remuneration paid by an employer to its employees for advertising by the employer on the license plate holder of the employee’s private car is remuneration for work if the “advertising rental agreement” concluded has no independent economic substance.
Before issuing a notice of termination, it is often necessary to first issue a warning. In many cases, this takes precedence over termination as the most lenient means. The State Labor Court of Mecklenburg-Western Pomerania has recently pointed this out once again (5 Sa 245/21).
If the employee is unable to work for more than six weeks, the certificate of incapacity for work (AU) is not sufficient to automatically receive continued payment of remuneration. There must be no continuation of the illness, which the employee must prove. This was decided by the Hesse Regional Labor Court (LAG, 10 Sa 898/21).
An often underestimated problem is the so-called pseudo self-employment: It can happen that someone is self-employed “on paper” and also behaves like this in everyday life. However, case law and the social security funds in Germany can come to the conclusion that an employment relationship is to be assumed despite self-employment. Objective criteria are used for this – and if the apparently self-employed person is then actually classified as an employee, this has unpleasant consequences: Social security contributions must be paid in arrears, which in Germany can quickly run into six figures! In addition, there is the threat of criminal liability for the involuntary employer and suddenly a monthly remuneration obligation if one does not give proper notice.
When does pseudo self-employment exist? The Federal Social Court (B 12 R 7/15 R) had the opportunity to comment on the criteria for the assumption of pseudo self-employment. Especially in the area of IT law and the widespread use of freelancers here, this is a constant minefield. At the time, the court had ruled that it is a weighty indication of self-employment if the agreed fee is significantly higher than the salary of a comparably employed employee subject to social security contributions and thus allows for self-provision. On this occasion, the court also once again discussed the criteria to be used in the examination of a pseudo-self-employment.
According to the German Federal Labor Court (2 AZR 17/23), an employee who makes strongly insulting, racist, sexist and violent comments about superiors and other colleagues in a private chat group consisting of seven members can only invoke a justified expectation of confidentiality against extraordinary termination of his employment relationship in exceptional cases.
“Who owns the customer data?” – a question that is not as modern as it seems at first glance. However, it can be seen that the question has become massively more acute in this day and age.
Where once there might have been a customer file on the desk or recorded in a central registry, today there are immediate contacts in personal networks such as LinkedIn and data storage on smartphones. Theoretically, it is conceivable that an employee or subcontractor could end the business relationship overnight – and have access to all important customer data without entering the office again.
A problem that is still underestimated – especially also in terms of criminal law, as our everyday life shows. Because increasingly, employees are confronted with the accusation of having “stolen” customer data.
Posts at our German-language blog on the betrayal of secrets by employees.
The Federal Labor Court (9 AZR 187/22 and 9 AZR 260/21) once again dealt with an agreement between employee and employer on training costs. The problem regularly lies in the fact that an employer finances further training for an employee, but the employee then quits and uses the qualification acquired at the employer’s expense for another job.
Against this background, repayment clauses have developed in the event of termination, but these are regularly subject to legal review. And here, too, it is possible for courts to review the content – so that the written word alone is not decisive. In the present case, the employer had no claim against the employee for repayment of the training costs under the relevant clause of the training contract. This was because the provision did not stand up to a review of its content and was therefore invalid.