78

After a rough few weeks (lots of late nights) I looked over my work contract and found the following statements:

  • As far as the operational conditions require, overtime is to be worked. Overtime working is already fully compensated with the basic salary.
  • The employee commits himself not to disclose information on his salary, bonus payments, or any other perks within or outside of the company.

Concerning overtime - does this effectively mean "you must work as much as the company wants, with no extra pay"? Thankfully this hasn't been abused so far, but it seems crazy to have this as a binding contract.

Concerning salary disclosure - I get that culturally we don't bring it up, but to forbid speech in the work contract, that seems very extreme.

From a comment below: I am a web developer, not a manager.
I'm not from Germany, so I don't know the local laws. Is this normal?

CGCampbell
  • 1,257
  • 17
  • 23
Mirror318
  • 1,791
  • 1
  • 10
  • 13
  • TO the first question: Are they? I mean in your contract you should have something like "basic salary w/o overtime allowed be labour law is X, basic salary with overtime allowed by labour law is Y." In the statement as you put it it looks like you negotiated X and based on this they calculated Y and are paying you that amount, regardless the amount of working overtime or not. – SZCZERZO KŁY Dec 04 '19 at 09:58
  • @SZCZERZOKŁY that's exactly what it implies—I have negotiated a salary of X, and this clause says all overtime will be included in that salary, nothing further added. – Mirror318 Dec 04 '19 at 11:06
  • 4
    @Mirror318 You should take this to Arbeitsrecht Lawyer as your salary cannot include payment for overtime as overtime in the german labour law is described as something occasional. With extra warrants on how much you can do them, and how you should be compensated. – SZCZERZO KŁY Dec 04 '19 at 11:27
  • 65
    As a side remark, the right moment to read a contract is before you sign it. Luckily they didn't claim right to your first born kid anywhere in it (or maybe they are?) – Laurent S. Dec 04 '19 at 15:25
  • 4
    I think reasonable overtime without additional renumeration is expected in most salaried positions. That said, the EU has a 48 hour maximum work week, unless you sign a waiver to forfeit those rights. – fubar Dec 04 '19 at 21:54
  • Somewhat unrelated: If you do not already have a "Rechtsschutzversicherung" including labor law: get one. They mostly include a free "Erstberatung" (first consultation) which is basically a bunch of lawyers answering the phone. They could have answered both your questions in the blink of an eye. – Fildor Dec 05 '19 at 09:13
  • 2
    @fubar: even if you sign a waiver, it may still be illegal. The goal of the law is to protect workers. It would be easy for employers to force workers in difficult situations into signing a waiver. – Taladris Dec 05 '19 at 14:27
  • 2
    @LaurentS. Luckily this is germany, there are many laws regarding contracts and you can generally sign a contract without reading it because there can't be anything "unexpected" in there (or rather if there is anything far out of the ordinary it will not hold up in court, regardless of whether or not you signed the contract (even knowingly)). – xyious Dec 05 '19 at 17:43
  • 8
    @LaurentS. I mean of course you're generally right but on the other hand German contracts are void if they contain clauses against common decency (“sittenwidrig”), even less hyperbolic ones than right to your first-born. There's tremendous legal protection against exploitation. – Konrad Rudolph Dec 05 '19 at 19:20
  • 2
    "I'm not from Germany, so I don't know the local laws" - they know this and they are exploiting you horribly. Germany is very famous for its strong worker-protection laws, and if something is against the law of the country, no "internal company policy" can trump it no matter what your boss might claim, and not even signed contracts are enforceable if they would violate these laws. – Val Dec 05 '19 at 20:17
  • I'm inferring that you may also be dependent on your employer for your work visa, and that you're not from the EU. Is that the situation? Does the employer farm visa-holders from non-EU countries for IT positions? – smci Dec 06 '19 at 00:58
  • 1
    @fubar No, it's not. "Salaried" positions as you know them in the US are not a thing here in Italy unless you're a Quadro or Dirigente (executive) (Quadro is basically executive light). The reasoning being that if you're Quadro or higher, you are the one who decides how much to work because you have executive power to do so. When you're a regular employee you don't. Of course the law doesn't stop unscrupulous employers from asking for unpaid overtime, but it's strictly illegal and you have every right to tell them to get fucked. I'm pretty sure Germany is the same way. – Demonblack Dec 06 '19 at 14:15
  • Not sure about Germany, but in Canada (specifically Ontario) where I am from, IT professionals are exempt from overtime and hours of work rules under the Employment Standards Act. As a web developer you would fall under this category and therefore are not eligible for overtime. I would be interested to see what these laws are like in other countries. – Matt K Dec 06 '19 at 19:16
  • @Demonblack li wasn't thinking about the US, but rather the UK where I am from. Either way, as you and others have said, employment law differs from one country to the next. – fubar Dec 06 '19 at 21:14

6 Answers6

252

Both statements have been in courts and both have been ruled illegal and unenforceable.

Overtime can be included in the "basic salary", but only if you are in management or similar positions where your basic salary is good enough anyway (currently >76.200€ p.a.). In addition, overtime can not be generally included, because basic contract law says you cannot enter in a contract that fails to quantify the goods traded. Statements like "overtime up to two hours a day" would be perfectly fine from a legal point of view, because now it's quantified and no longer a vague unforeseeable promise. Reference: BAG 01.09.2010 ­– 5 AZR 517/09

As for the second point: the employer can protect their trade secrets and provide NDAs to their employees to not talk about those trade secrets. Courts have ruled that your own pay is not a trade secret and not talking about it would be an undue burden for the employee, as talking about it is the only way to know whether you are compensated fairly. Reference: (LAG Mecklenburg-Vorpommern, Urteil v. 21.10.2009, 2 Sa 237/09). However, none of those courts have been the highest court, so each of those could be overturned or another case could be ruled differently in another jurisdiction.

However, I would not see any of those as a big red flag. It means they don't have a company lawyer that keeps their contracts up to date with current court orders. It might not be a bad sign if a company has no lawyers combing through their contracts for weaknesses. You will find those clauses in many German contracts because at one time they were valid and nobody bothered to take them out. As an employee you cannot be bound by such clauses, even if you signed the contract.

nvoigt
  • 138,739
  • 73
  • 318
  • 416
  • 51
    Well done on digging up the citations on that, and I want to echo the point that many many many companies use sample or fill-in contracts or still use the same ones they were using 10+ years ago, which haven't kept up with the courts. Hiring a lawyer to re-draft your employment contracts and having everyone re-sign them is expensive, and businesses don't generally go for it often. – Magisch Dec 04 '19 at 10:28
  • 4
    IANAL: Last time I heard the 2nd statement is half enforceable. You can't be forbidden to talk about your payment with coworkers in comparable jobs, because you need this information to know if you get a fair payment (one which is in line with antidiscrimination laws).

    But you can be forbidden of talking about this to outsiders, so that competitors dont know.

    Also, some companies still include this phrases even if they know they are not enforceable, in the hope you dont know. After all, if you dont know you are paid way less, you dont negotioate as hard (or so they hope).

     – Benjamin Dec 04 '19 at 10:29
  • 24
    @Benjamin, under that interpretation, would you then be forbidden from disclosing your salary to e.g. a bank on a loan application? That seems quite burdensome as well. – Nate S. Dec 04 '19 at 23:06
  • 1
    Wouldn't cashing your paycheck kind of disclose your pay as well? – le3th4x0rbot Dec 04 '19 at 23:26
  • 12
    The lawyer may well know that they're unenforceable but leave it anyway - the worst that happens is someone takes you on it. At the very least it will delay or dissuade someone from doing it. It seems zero cost to leave it in, and if it ever comes down to it the employer can simply say "Oh look at that, David used the wrong template for those sections. We will definitely get that addressed." – corsiKa Dec 05 '19 at 00:38
  • 1
    @NateS-ReinstateMonica Of course you are allowed to show the bank what you earn. But bank employees have their own set of laws of secrecy, so they arent allowed to go around and tell... – Benjamin Dec 05 '19 at 00:50
  • 8
    @trognanders not sure about Germany, but in the Netherlands paychecks are illegal. By law all salary payments have to be done electronically so there is a trail for tax agencies to follow. Any payment in cash or checks would be considered illegal and serious fines can result if found out. – jwenting Dec 05 '19 at 08:12
  • 2
    "It means they don't have a company lawyer that keeps their contracts up to date with current court orders" I'm not sure if that is a correct conclusion in most cases. They could have a lawyer who know that parts of the contract aren't enforceable but still intentionally keeps clauses like that as a deterrent. Or they keep them in case a higher court overrules the previous court decisions, as you already have mentioned. – kapex Dec 05 '19 at 14:32
  • 1
    One thing to add is that even if your contract stated "2 hours of overtime per day" this is not legal as the total working time is limited to a long term average of 8 hours per day – Manziel Dec 05 '19 at 17:04
  • One thing to note is that if the company wants to fight for this in court it would take a long time and much money to even get it to the highest court. The loser generally pays all court costs (including the winner's lawyer) so they would have to spend a lot of time and money even getting to the highest court with a fairly small chance of winning in the end. – xyious Dec 05 '19 at 17:47
  • 8
    "Know that parts of the contract aren't enforceable but still intentionally keeps clauses like that as a deterrent" <-- This kind of thing should be subject to penalties in and of itself, including loss of license to practice law. – R.. GitHub STOP HELPING ICE Dec 05 '19 at 17:59
  • 3
    @jwenting: AFAIK, there's no such law in Germany. There'd need to be a old-fashioned paper trail with everyone signing receipts and getting copies, though (and tax withholdings, social insurance etc. are paid electronically). Here's a recent blog post citing a court decision that the employer actuall has to pay cash if the employee doesn't want the money wired: https://www.rechtsanwalts-kanzlei-wolfratshausen.de/verlangt-der-arbeitnehmer-ausdruecklich-eine-barzahlung-seines-lohns-dann-tritt-durch-eine-ueberweisung-keine-erfuellung-ein/ – cbeleites unhappy with SX Dec 05 '19 at 23:03
  • 1
    2 hours a day is quite a lot, isn't it? On the other side, in Germany, one is not allowed to work more than 48 hours a week, so.. – Ben Dec 06 '19 at 06:54
  • Just a thought, if you change your salary to a number which you cannot speak of because of an NDA (some password or something) but you then talk about your "salary". Would that be legal? – Tvde1 Dec 06 '19 at 09:35
  • 2
    @trognanders I believe most places in EU use direct bank deposit for salary/wages. I've never heard of receiving a check as payment for an employee in Italy (maybe decades ago, but in the last 20 years the standard payment form has been direct bank deposit. Obviously shady businesses might have done otherwise). – Bakuriu Dec 06 '19 at 18:18
9

Adding the legal sources of the work time part of the question to the other answers, but since I'm not a lawyer, I only cite the sources (in german), with a short, possibly incorrect translation. Source is the Arbeitszeitgesetz (ArbZG) ("work time law"):

§ 3 Arbeitszeit der Arbeitnehmer

Die werktägliche Arbeitszeit der Arbeitnehmer darf acht Stunden nicht überschreiten. Sie kann auf bis zu zehn Stunden nur verlängert werden, wenn innerhalb von sechs Kalendermonaten oder innerhalb von 24 Wochen im Durchschnitt acht Stunden werktäglich nicht überschritten werden.

Your average daily work time must not exceed 8 hours (rest time not counted, taking a rest is mandatory, see §4) over a course of six months. No work day may exceed 10 hours.

The details may differ, see §7:

§ 7 Abweichende Regelungen

(1) In einem Tarifvertrag oder auf Grund eines Tarifvertrags in einer Betriebs- oder Dienstvereinbarung kann zugelassen werden, [..] abweichend von §3 [..] (a) die Arbeitszeit über zehn Stunden werktäglich zu verlängern, wenn in die Arbeitszeit regelmäßig und in erheblichem Umfang Arbeitsbereitschaft oder Bereitschaftsdienst fällt, [oder] (b) einen anderen Ausgleichszeitraum festzulegen [..]

Basically, if you've got a supporter job on standby, the standby time may not count towards the limit (a). And your contract may state a different work time compensation regulation, but must not allow for "no compensation" (b).

Please take note of the whole legal text, as I am not a lawyer. I can point out §14 (extraordinary circumstances which may override §3) and §18 (listing the positions in which the whole law is not applicable, e.g. managerial positions).

orithena
  • 280
  • 1
  • 7
  • It's not may, it's must... which means that time off must balance the overtime within a 6 months period to a daily average of 8 hours, with an absolute limit of 10 hours per day. Since recently a new anti-exploitation law for delivery drivers exists: PDF. –  Dec 05 '19 at 16:10
  • 1
    @MartinZeitler Ah, right. The subtle differences between "may (not)" and the german "darf (nicht)" ... ^^ – orithena Dec 06 '19 at 08:57
6

As far as the first statement goes, this is part of a lot contracts, but if you decide to take them to court probably wont stand, since this is not legal, a legal phrasing would be something along the lines of.

As far as the operational conditions require, overtime is to be worked. Overtime working is already fully compensated up to N hours with the basic salary.

The second statement is legal, but not something that is practically enforced.

I am not a lawyer so all statements made might not resemble the exact state of the law. If you want to discuss this further you might consider talking to a Arbeitsrecht Lawyer.

Michael Karas
  • 2,093
  • 1
  • 13
  • 14
joachim
  • 348
  • 1
  • 9
5

There is an unpleasant, but rather popular practice in Europe to include illegal and unenforceable clauses in a contract between unequal parties and also a clause stating that if a clause is found illegal and/or unenforceable, the remaining of the contract still holds. The burden of getting the unlawful clause to the court is on the side not liking it (and usually not having the resources to fight in court).

(Yes, I am talking about you, telecoms!)

fraxinus
  • 1,339
  • 4
  • 8
  • 2
    This doesn't seem to me to attempt to answer what was asked. – CGCampbell Dec 05 '19 at 18:49
  • At least, it is pretty much related. OP has a clause in the contract that is pretty much unlawful and the contract text author probably knew this very fact in the first place. – fraxinus Dec 06 '19 at 09:04
  • Its popular in the US as well, and you are right to point this out. The OP should search the contract for this clause and see if his contract is at all enforceable. While I understand this is a translation, the second clause is ridiculous. You can't discuss your salary with your spouse? – Pete B. Dec 06 '19 at 13:15
3

The answers above are half or fully wrong.

First of all you have to distinguish between a "worker" position or a management position (that was correctly stated).

Up to a certain amount a manager my be required to do overtime, without compensation (for a limited period of time). BUT: usually that is compensated with free time (not by law, but by contract or trade unions).

Even if you are in a management position, overtime is limited to a maximum of hours per week, see below.

For ordinary workers/employees, you are either compensated with free time or by extra money: by law.

On top of that the amount of overtime you can do per week is limited, usually 2h per work day, with special permit from the ministry of laybour, 4h. In other words: you are not even allowed to work more than 10h a day by law. And for more than 10h you need a permit, more precisely your employer needs it.

Then again, the maximum weekly hours are 48h. So an employer could theoretically ask you to work on saturdays. But that limit reduces you to 4 days per week with max. 10h and the 5th day to 8h already.

Angel O'Sphere
  • 139
  • 2
  • this is super encouraging! do you have source to back that up? – njzk2 Dec 05 '19 at 06:28
  • I believe that the 48 hours are supposed to be the long-term average. The weekly maximum is six 10-hour days. – o.m. Dec 05 '19 at 06:45
  • 2
    @o.m. The long term average is 40 hours maximum. The 48 hours is already a temporary maximum. – quarague Dec 05 '19 at 08:43
  • I am a web developer, not a manager, and as for being compensated with time or money—that's what the contract is saying: that I will not be compensated beyond the normal salary. – Mirror318 Dec 05 '19 at 08:53
  • 3
    @quarague: No, 48 h is the long-term average - the law says 8h per "Werktag", with "Werktag" being defined as any day that is not a Sunday or a legal holiday. – sleske Dec 05 '19 at 10:47
  • 1
    @Mirror318 Make absolutely sure to keep record of your time worked. Your employer will have to compensate for that time, be it through time off work or extra pay, but you may need decent records to prove it - depending on how malicious your employer really ends up being. – towe Dec 05 '19 at 13:09
  • That is not correct. A manager in the sense of a "leitender Angestellter" has no legal limit to his working hours, as the ArbZG does not apply. See § 18 ArbZG. – kat0r Dec 05 '19 at 13:55
0

About the second paragraph: this is perfectly normal.

About the first paragraph: Yes and no.

It is legal to have someone sign an overtime included contract, and it is legal to not pay for overtime according to that contract. Most tech and consulting firms do that for pretty much everybody holding a somewhat not-bottom-of-foodchain position. For a web designer, it strikes me a bit over the top, but I wouldn't think it's illegal (seeing how it's acceptable for others).
Of course, the expectation is that your salary is such that it more than compensates for the possible overtime that you may deliver. For those people who usually work under overtime-included contracts (managers, senior managers, partners) this is indeed the case.

It is even legal to force you to deliver overtime (or cancel holiday, or similar things), under certain conditions.

Those conditions are however rather complex, involving some limits (maximum hours per day, minimum rest time, minimum break time, maximum hours per week averaged over 6 months, etc.) and some preconditions.
The most important precondition is "urgent need". And no, urgent need is not something like "we can't be bothered to hire more people, so you have to work longer". Urgent need is something like "unanticipated emergency, people will die or the company will go bankrupt if you don't do overtime".

Now, stating beforehand that overtime is required (i.e. regularly) is, uh... a different story. Basically the contract says "fuck work time laws, you're my slave", which will, almost certainly, not hold if you go to court.

The question is, of course, whether you will want to go to court. As the consequences are unpleasant, few people do that, which is why this practice persists and is successful.

Damon
  • 553
  • 2
  • 2