Private WhatsApp group chats are not a legal vacuum
In its judgment of 24 August 2023 (2 AZR 17/23), the Federal Labour Court (Bundesarbeitsgericht - BAG) had to decide to what extent inappropriate communication in private chat groups among employees is confidential or can lead to measures under labour law on the employer's side. The Federal Labour Court did not give an answer in the sense of "zero or one". Rather, it elaborated various criteria as to when supposedly private matters are really private and when they are not. Thus, the judgment has far-reaching consequences for communication at the workplace as well as in leisure time and for the supposedly private use of digital media.
Facts
The dismissed employee belonged to a private chat group with five other employees and a former colleague. The members of the group had been friends for many years, two were related to each other. In addition to purely private messages, the members of the group, in connection with a workplace conflict, made insulting, racist, sexist and violent comments about superiors and colleagues. The employer learned of the insulting remarks by chance and dismissed the employee without notice. The employee brought an action for protection against dismissal. Both courts of lower instance decided in favour of the employee..
From Dr. Nicole Elert and Fabienne Richarz
Equal pay is not a matter of a better negotiation
In its fundamental decision of 16 February 2023 (Case No. 8 AZR 450/21), the German Federal Labor Court (Bundesarbeitsgericht) clarified that equal pay is no longer purely a matter of negotiation. Now the reasons of the decision are available and the Federal Labor Court is specific about which principles employers must adhere to for the assessment of equal or equivalent work and which criteria can justify a differentiation in remuneration. Companies are now in a conflict that even individual remunerations must be seen in an overall context in order to avoid legal disputes due to gender discrimination.
Facts
The female employee started working for the defendant company almost simultaneously with a male colleague. Both were hired as sales representatives. Both were offered the same salary, but the male colleague had negotiated during the negation of the contract that his salary would automatically be increased by more than 600 euros gross within a few months. The female employee did not receive that increase. In the court proceedings, the company justified the resulting difference in salary by stating that the male employee had taken over the position of a female sales employee who had left the company and was better paid. However, the Federal Labor Court did not follow this line of argument and ruled in favor of the employee, awarding her payment of the arrears of differential remuneration as well as payment of appropriate compensation due to gender discrimination.
From Manuel Klingenberg and Fabienne Richarz
Social security: Increase of the contribution supplement for childless persons and consideration of children in the calculation of nursing care insurance contributions by employers and contribution paying agencies from 1 July 2023 onwards.
Since 1 July 2023, the contribution rate in nursing care insurance has been differentiated according to the number of children. For this purpose, the contribution supplement for childless persons was increased by 0.25 per cent to 0.6 per cent (§ 55 para. 3 sentence 1 SGB XI). In addition, members with several children from the second to the fifth child are relieved with a contribution reduction of 0.25 per cent for each child who has not yet reached the age of 25 (§ 55 para. 3 sentence 3, 4 SGB XI).
Background
Contributions to the nursing care insurance are basically financed equally by employers and employees, except for Saxony. In addition to the contribution rate, childless members have had to pay a contribution surcharge since 2005. The payment of this contribution surcharge is made within the framework of the contribution collection procedure and is paid to the collection agencies together with the overall social security contributions.
In its decision of 7 April 2022, the Federal Constitutional Court ruled that the child-rearing expenses of parents and the number of children must be taken more into account in the nursing care insurance. The decision was implemented with the Act on Support and Relief in nursing care (Pflegeunterstützungs- und -entlastungsgesetz - PUEG), which among other things regulates the increase of the contribution supplement for childless members and the contribution discount for members with children.
From Iris Brandes and Vaia Karatasiou
Change in case law of social security: (Pseudo-) Self-employment of the shareholder-managing director
There are no special legal regulations for the status assessment of a shareholder-managing director of a limited company - here, too, the assessment is based on the requirements of section 7 (1) German Social Code Book IV. According to this, indications for dependent employment are "an activity according to instructions and an integration into the work organization of the person giving the instructions". What this means for the shareholder-managing director cannot be derived from the law. The development of these criteria for the classification of status remains reserved for the judiciary's further development of the law. They are complex and subject to constant change - without legal expertise, a legally compliant assessment is not possible.
A shareholder-managing director is considered a dependent employee if he or she does not have the necessary legal power within the company. This legal power results from the articles of association and means that the shareholder-managing director can exercise decisive influence on the fate of the limited company (Ltd). With the ruling of the Federal Social Court (BSG) of 13 December 2022, Case No. B 12 KR 16/20 R, the previously familiar definition of legal power has changed in such a way that many shareholder-managing directors run the risk of being classified as pseudo self-employed.
From Iris Brandes and Dana Schneider
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