Office for the Equal Treatment of EU Workers

Working conditions

German labour law does not make a distinction between national and non-national workers. It is unlawful for you to be treated differently to national workers when it comes to matters of labour law, and if this occurs you can enforce your right to equal treatment. In doing so, you can invoke:

This is also true if you are a temporary worker (Leiharbeitnehmer/in) working for a temporary work agency established in Germany.

1. Trial employment and probationary periods

Employers are sometimes only willing to offer you an employment contract if you have first worked for a few days unpaid as a trial. This means that you engage in trial employment before a decision is taken on whether you will receive an employment contract. Trial employment (Probearbeit) often only lasts for one day, but sometimes for two to five days. It is intended to give the applicant and the employer the chance to get to know each other better. The employer can find out what the applicant’s work ethic is like, how he or she carries out the tasks involved, etc. The applicant, in turn, learns more about the work environment and atmosphere.

Please note: As you are not paid during the trial employment period, you should take care to ensure that the offer is a trustworthy one. More information on this is available in the FAQ.

Be careful not to confuse trial employment (Probearbeit) with a probationary period (Probezeit). Unlike in the case of trial employment, you are employed during any probationary period and are paid for your work.

There are two types of probationary period:

  • You receive a permanent employment contract which contains a probationary period clause. Your employment relationship continues after the probationary period unless it is terminated during the probationary period.
  • You receive a fixed-term employment contract only for the length of the probationary period. In this case, your employment relationship ends automatically when the probationary period expires. If the employer wants to continue to employ you, you have to be given a new employment contract.

A probationary period also gives the employer the chance to gain an impression of whether you have the skills and capabilities required to carry out the work. And you can find out whether you want to work for the company or not.

In the case of apprentices undertaking vocational training, the probationary period is limited by law to a minimum of one month and a maximum of three months. By contrast, the length of the probationary period is not regulated by law in the case of employment. It depends on how difficult your work is, and it should not be longer than nine months.

Please note: If you are ill for a time and unable to work, the probationary period is not extended. However, a relatively long period of illness can put the continuation of your employment at risk.

The notice period is shorter during the probationary period than in a permanent employment relationship. You can also take advantage of the shorter notice period if you do not want to continue working for the employer.

You are entitled to holiday leave even during the probationary period.

Please note: During the probationary period, your employer can terminate your employment without having to give a reason, as the statutory protection against dismissal does not yet apply during the probationary period. You can also be dismissed while on sick leave, if you are not at work due to illness.

2. Employment contract

Your employer is required to give you a written employment contract no later than 1 month after the start of the employment relationship. You and the employer both sign the employment contract.

Even if a contract has been concluded orally, your employer must give you a written document setting out the main terms of the contract no later than 1 month after the start of the employment relationship. The employer must sign the document setting out the terms of the contract.

The employment contract or the document setting out the terms of the contract must contain the following information:

  • Name and address of the employer and employee
  • Beginning and duration of the employment
  • Type of work, job description
  • Place of work
  • Pay level (usually your gross salary)
  • Components of your pay (basic salary plus any supplements or allowances)
  • Working time
  • Holiday entitlement
  • Notice periods for terminating the contract
  • A reference to applicable collective agreements or agreements at the company or organisation level

The information on pay, working time, holiday entitlement and notice periods may be replaced by a reference to an applicable collective agreement or a company- or organisation-level agreement.

Please note: Some employers from Germany try to attract skilled workers from other EU countries by offering them accommodation or a free German language course. The employment contracts or continuing training contracts often contain a repayment clause. The repayment clause requires you to work for your employer for a certain period of time. If you want to terminate your employment early or change employer, you have to repay the additional benefits provided by your employer, for example the cost of the language courses or rent. If you have a repayment clause in your contract, seek individual advice from an advice centre. In many cases, such agreements are invalid. Employment contracts containing repayment clauses are often for jobs with poor, unfair working conditions. It can be worth looking for a better job.

3. Pay

In Germany, the minimum wage is regulated by law. Employers are required to pay the applicable minimum wage in all cases. This is true regardless of whether you work for a German or a foreign employer. In Germany, the Customs Administration (Zollverwaltung) monitors whether employers are paying the minimum wage. Employers who fail to pay the minimum wage must pay arrears. They can also face a fine.
From 01.01.2020, the minimum wage is EUR 9.35 gross per hour actually worked. Nurses get a higher minimum wage. In nursing care, the minimum wage has been € 11.35 in West Germany and in Berlin and € 10.85 in East Germany since January 1, 2020.

Attention: These minimum wages do not apply in private households. The statutory minimum wage of EUR 9.35 per hour applies there. This applies e.g. also for cleaning and kitchen aids.

In most cases, the wages set out in collective agreements are higher than the statutory minimum wage, and in some cases they are significantly higher. It is therefore usually beneficial for you if your employment relationship is covered by a collective agreement.

You still have to be paid the minimum wage even if your employer is dissatisfied with your performance.

Please note: If your employer does not pay you the wage which has been agreed, there are various steps you can take. In this context, it is essential for you to comply with the time limit (Ausschlussfrist) (after which your entitlement expires) set out in your employment contract. These time limits may also be included in the collective agreement (Tarifvertrag) which applies to you or in an organisation-level agreement (Betriebsvereinbarung).

Detailed information about the minimum wage in Germany can be found in the leaflet “Mindestlohngesetz im Detail” published by the Federal Ministry of Labour and Social Affairs.

You can also call the Minimum Wage Hotline on +49 (0)30 60 28 00 28 if you are not receiving the minimum wage. The hotline registers complaints and reports of breaches of the Minimum Wage Act (Mindestlohngesetz).

Even if you are receiving the minimum wage, make sure the amount you are paid does not nonetheless violate the ban on unethically low pay. More information on this is available in the FAQ.

4. Termination of employment and protection against dismissal

There are two types of dismissal in Germany: dismissal by notice (ordentliche Kündigung) and summary dismissal (außerordentliche Kündigung). No notice is given in the case of summary dismissal. This means that the employment relationship ends immediately when the employee is informed that they are being dismissed. It is rare for employment to be terminated without notice, as special conditions have to be met for this type of dismissal to be valid. More information on this is available in the FAQ.

In general, an employer is required to give four weeks’ notice to the 15th or the end of a calendar month (dismissal by notice). The longer you have been employed by an organisation, the longer the notice period to which you are entitled. For example, if you have worked for an organisation for 15 years, you are entitled to six months’ notice to the end of a calendar month.

If

  • you have been employed for longer than six months at the time of the dismissal, and
  • you are employed by an organisation with more than 10 employees,
    you are entitled to special protection against dismissal under the Unfair Dismissal Protection Act (Kündigungsschutzgesetz).

The Unfair Dismissal Protection Act states that any dismissal by the employer must be warranted in social terms. The employer must give special grounds why the employee cannot continue to be employed in the organisation. These grounds can relate to the person in question or their conduct, but urgent operational requirements may also be given as a reason.

If the Unfair Dismissal Protection Act does not apply because the person has not been employed for long enough or because the organisation is too small, the employer can dismiss an employee without being required to state any grounds.
However, this is not the case if you belong to a group of people in special need of protection.

Please note: A dismissal must be in writing in order to be valid. Dismissals which take place orally, by email, by fax or by text message are invalid.
It is possible to be dismissed while on sick leave.

If the organisation you work for has a works council (Betriebsrat), the employer is required to hear the works council’s views regarding your dismissal. A dismissal which takes place without the works council’s views being heard is invalid.

Tip: In view of this, it is important for you to inform the works council immediately if you are dismissed.
The works council can, within a week, contest the dismissal on certain grounds.

Please note: If you would like to take legal action against your dismissal, you must bring an action for unfair dismissal (Kündigungsschutzklage) in the Labour Court (Arbeitsgericht) within 3 weeks after receiving written notification of your dismissal. If you do not bring the action within this time limit, the dismissal is valid. You must comply with this time limit even if the Unfair Dismissal Protection Act does not apply.

Further information can be found in the leaflet Kündigungsschutz published by the Federal Ministry of Labour and Social Affairs. If you are affected by a dismissal, consult a lawyer or an advice centre as quickly as possible.

5. Working time

In Germany, working time is regulated by law. Working time is the amount of time in which employees or apprentices are required to place their labour at their employer’s disposal. Time which is spent waiting and ready to work is known as “readiness to work” (Arbeitsbereitschaft). This “waiting time” also counts as working time.
One exception to this is lorry drivers: periods of “readiness for work” do not count as part of their working time.

You are allowed to work a maximum of 8 hours per day. Your working time can be extended to a maximum of ten hours if, over a period of six months, your average daily working time does not exceed eight hours.

There is also a ban on working on Sundays and public holidays.

For certain sectors and occupations, however, exceptions to these working time rules are enshrined in the law or in collective agreements. The statutory exceptions are contained in the Working Time Act (Arbeitszeitgesetz). More information on this is available in the FAQ.

Please note: If you live in a household with people for whom you have autonomous responsibility as a childcare worker, carer or assistant, the legal regulations on working time do not apply. However, this does not mean that you have to be at your employer’s disposal 24 hours a day. If you feel you are being exploited and treated poorly by your employer, contact an advice centre near you.

Breaks and travel time to and from work are not classified as working time. In the case of miners working underground, breaks do count as working time.

Further information is also available in the leaflet “Arbeitszeit” published by the Federal Ministry of Labour and Social Affairs.

Tip: Keep a written note of the hours you work each day and your breaks. Have your boss or supervisor sign your notes. If this is not possible, ask a colleague to sign them, for example. This is important in disputes, as you have to provide evidence of your working time. You can download and print out this work time calendar for this purpose, for example.

6. Holiday entitlement

Workers are entitled to at least 24 working days of paid annual leave per calendar year. That is four weeks’ holiday per year, as Saturdays also count as working days. You only gain this entitlement after being employed for six months. If you are employed for a shorter period than six months, you are entitled to holiday leave on a pro rata basis (two working days per month).

Your holiday entitlement is set out in your employment contract. If a collective agreement applies to your employment relationship, the amount of holiday to which you are entitled is usually higher. In the case of young people, the provisions on holiday entitlement enshrined in the Act on the Protection of Young People at Work (Jugendarbeitsschutzgesetz) apply. This law states that young people are entitled to up to 30 working days’ holiday, depending on their age.

In all cases, you should submit a written application for holiday leave to your employer. Normally you can freely choose when to take your leave. However, there are cases in which your employer can limit or turn down holiday requests for operational reasons. For example, if there are too few staff available for the organisation to be able to keep running. Or if a large number of orders suddenly have to be dealt with, or if closing operations and stock-taking have to be carried out at the end of the year, etc.

It is only possible for holiday leave to be carried forward to the next calendar year if you were not permitted to take it or if you were unable to take it due to important personal reasons. In this case, the leave must be granted and taken in the first three months of the following calendar year. An exception is if you were unable to take leave due to a long period of illness.

If you provide a medical certificate as evidence that you are ill during your leave, the days of illness are not counted towards your holiday entitlement.

Please note: If your employment ends and you have not yet taken all of your annual leave, your employer must pay you for your remaining days of leave. If your employer refuses to pay you for the remaining leave, you must lodge a claim for payment within a short period of time (a time limit (Ausschlussfrist) applies, as in the case of pay claims).

7. Occupational safety and health

The Safety and Health at Work Act (Arbeitsschutzgesetz) requires employers to assess working conditions in order to determine what health and safety measures are necessary (risk assessment). The risk assessment must reflect the kinds of different activities involved, and look at all types of physical and psychological stress which can be involved in the work. On this basis, the employer must then take the necessary protective measures. Employers are responsible for ensuring that occupational safety and health is integrated into workplace procedures and that qualified officers ensure compliance with occupational safety and health throughout the organisation.

As an employee, you can request that your employer inform you about the health risks involved in your job. You must be in a position to recognise and react to health risks.

8. Pay during absences from work

If you work for an organisation for longer than four weeks and fall ill, you are entitled to continue to be paid your regular wage by your employer for up to 6 weeks. This is the case even if you are unable to work due to a sports injury. However, if you have deliberately put your health at risk, for example by drink-driving, participating in a fight or smoking after a heart attack, your employer can deny you sick pay. Your employer can also deny you sick pay if you are unable to work due to cosmetic surgery or the removal of a tattoo.

Please note: If you are ill, you must notify your employer as quickly as possible. You need a medical certificate from the fourth calendar day of your illness, at the latest.
For example: if you fall ill on a Friday, you must submit a medical certificate to your employer on the Monday. However, your employer can require you to provide a medical certificate as early as the first day of your illness.
It is essential that you comply with these time limits, as breaching them can lead to your dismissal.

You are entitled to special leave (Sonderurlaub), during which you are paid your regular wage, if you are not working because

  • there is a death (2 working days) or birth (1 working day) in your family,
  • you have learned that a close relative is seriously ill (up to 10 working days),
  • you are celebrating your own wedding (1 working day).

Further information is also available in the leaflet “Entgeltfortzahlung” published by the Federal Ministry of Labour and Social Affairs.

If you need further information about labour law, you can consult the leaflet “Arbeitsrecht - Informationen für Arbeitnehmer und Arbeitgeber” (Labour Law – Information for Employees and Employers). You can also contact the helpline run by the Federal Ministry of Labour and Social Affairs on +49 (0)30 / 221 911 004 (Monday to Thursday, from 8 a.m. to 8 p.m.) with any questions.

FAQ Working conditions

Even in the probationary period, you have a right to holiday leave. If you have 24 days’ annual leave, for example, you are entitled to 2 days’ holiday per month during the probationary period. That said, your boss can prohibit you from taking leave during the probationary period. This must be stated in your employment contract, however.

Please note: If your employment is terminated during the probationary period, your employer must pay you for any days of leave you did not take.

Employers are required to pay the minimum wage even if they are not satisfied with a worker’s performance. Even if, for example, you do not meet your employer’s numerical targets (such as number of rooms cleaned or number of packages put together per hour), you are entitled to the minimum wage.

EU citizens who are temporary workers (Leiharbeitnehmende) are also entitled to full equality of treatment with national employees of the temporary work agency. The provisions of German law which apply to temporary workers, in particular the Act on Temporary Employment Businesses (Arbeitnehmerüberlassungsgesetz), apply regardless of whether a German temporary work agency employs national or foreign workers.

Tip: Ask your temporary work agency to give you the Federal Employment Agency’s information sheet for temporary workers and a document setting out the main working conditions in your native language. The agency is required to give you this.

Further information on the supply of temporary workers is also available on the Federal Employment Agency’s website.

German collective agreements (Tarifverträge) regulate workers’ conditions of employment, such as pay levels, minimum holiday entitlements, etc. The arrangements set out in collective agreements are usually more favourable for workers than the statutory regulations. For example, collective agreements can stipulate that workers are entitled to more days of holiday leave and a higher minimum wage.

The provisions of a domestic collective agreement apply to all workers who are members of the trade union, if the employer is bound by a collective agreement negotiated by a trade union. If you are not a member of the trade union, a collective agreement only applies to you if your employment contract states that

  • a specific collective agreement is applicable, or
  • your employment relationship falls within the scope of a generally binding collective agreement.

Tip: You can demand that your employer include such an agreement in your employment contract, if colleagues who are national workers have it in theirs.

The size of an organisation’s workforce is determined by calculating the proportion of a full-time post held by each employee, based on the number of hours they work per week:

  • Part-time employees who routinely work 20 hours or less per week are counted as having 50% of a full-time post.
  • Employees who work 30 hours or less for the company per week are counted as having 75% of a full-time post.
  • Apprentices are not counted as part of the workforce for the purposes of the Unfair Dismissal Protection Act (Kündigungsschutzgesetz).

Example: An organisation has 6 members of staff working 39 hours per week (6), 2 members of staff working 32 hours per week (2×0.75), 1 member of staff working 15 hours per week (0.5) and 2 apprentices working 20 hours per week (0). The organisation thus has a workforce of 8 (6+1.5+0.5), meaning that the Unfair Dismissal Protection Act does not apply.

Compliance with the minimum wage is monitored by the unit within the Customs Administration (Zollverwaltung) which is responsible for enforcing the law on illegal employment and benefit fraud. It also monitors sector-specific working conditions under the Posted Workers Act (Arbeitnehmer-Entsendegesetz). Audits are carried out on-site – without advance notice being given. The Customs Administration unit has the power to examine records, interview individuals (employers, customers, workers) and enter business premises. In certain sectors, and in the case of marginal employment (known as “mini-jobs”), employers who are obliged to pay the minimum wage under the Minimum Wage Act (Mindestlohngesetz) are required to record, within seven days, the time at which the employee started and finished work and the length of the daily working time. During an audit, the employer must also be able to produce employment contracts, payroll records and payment orders. All records must be retained in Germany for at least two years. Further details are provided on the Customs Administration’s website.

If, in a specific sector, a wage of 18 euros is customary under a collective agreement and you only receive the minimum wage of 9 euros, your pay can, in certain circumstances, be considered unethically low. An unethically low wage (sittenwidrige Entlohnung) is one which is less than two-thirds of the customary wage under a collective agreement. A guide to the customary wage under collective agreements for different sectors and occupations can be found here. In the above example, you ought to be earning at least 12 euros if the customary wage under a collective agreement is 18 euros. However, it is necessary to demonstrate that your employer is paying you less than the others deliberately and without justification. If you are not sure whether your pay is unethically low or not, consult an advice centre near you.

Yes, this is allowed. In this case, if your employment is to be continued, the employer must conclude a new employment contract with you after the agreed probationary period. Otherwise, your employment ends when the probationary period expires.

The works council (Betriebsrat) can contest a dismissal by notice (ordentliche Kündigung) within one week and a dismissal without notice (fristlose Kündigung) within 3 days if:

  • the dismissed employee can be employed in a different position within the organisation or company
  • the employer has not adequately considered social criteria in the selection process, in the case of a dismissal for operational reasons,
  • the dismissal runs counter to the guidelines agreed with the works council,
  • it is possible for the employee to continue to be employed following reasonable retraining or further training programmes, or with different contractual conditions, provided that the dismissed employee agrees to this.

Every hour in which you place yourself at your employer’s disposal counts as working time. This includes periods when you are waiting for work materials, for guests to check out of a hotel, for a van to be loaded or unloaded, etc. On-call service in the care sector, i.e. the time you spend on standby in the immediate vicinity of elderly and ill people, also counts as working time.

Employers who do not meet their obligation to provide the minimum working conditions required under the Minimum Wage Act (Mindestlohngesetz) or the Posted Workers Act (Arbeitnehmer-Entsendegesetz) can face a fine of up to 500,000 euros. Breaches of the obligation to cooperate with audits (e.g. a refusal to provide information or to produce records) or a violation of the requirement to keep working time records can result in a fine of up to 30,000 euros. An employer who has been fined at least 2500 euros for an administrative offence under the Minimum Wage Act or the Posted Workers Act can also be banned from being awarded public contracts. Unethically low wages (sittenwidrige Entlohnung) can constitute a criminal offence of “wage usury” (Lohnwucher) under Section 291 of the Criminal Code (Strafgesetzbuch).

An offer of unpaid trial employment is probably untrustworthy if

  • you receive a trial employment invitation before you have even attended a first interview;
  • the trial employment is to last longer than five days;
  • no one explains the work procedures to you and there is no one you can ask questions;
  • you do not receive a trial employment contract when you request one;
  • the employer gives you specific instructions on what is to be done and sets a deadline for carrying them out, or if you have to keep to specific working hours or go to specific work locations.

Trial employment is merely intended to give you an insight into the company and let you gain some initial experience of the work involved. As soon as you are required to comply with break times or follow exact instructions given by the employer, an employment relationship can be said to exist.

Do you have the feeling that your work is producing added value for the employer at all times and that you are actually not receiving any further support from the employer? Or are you being treated like the other employees and carrying out comparable activities at all times?

  • If this is the case, you can sue the employer for payment of wages.

    Please note: If you want to sue the employer for payment of wages, you normally have to provide evidence in court that an employment relationship has existed.
    If the court accepts that an employment relationship exists, the employer must pay you wages. If the employer wishes to terminate your employment, the statutory notice period applies (4 weeks to the 15th or the end of a calendar month).

  • You can draw the employer’s attention to the legal situation and ask to be formally employed. If the employer does not agree to do so, you should not extend the trial employment period.

The principle of equal treatment under labour law prohibits employers from treating individual employees or groups of employees less favourably than other employees in similar circumstances. Exceptions are only permitted if the employer has an “objective reason” for the difference in treatment. For example: if an employer wants to reward loyalty to the organisation by paying a Christmas bonus, payment can be made dependent on length of service. This means that employees only receive this bonus after 5 years of service. In this scenario, if an individual were to receive the bonus after just one year’s service, this would violate the principle of equal treatment under labour law, meaning that all employees would be able to lodge a claim for the bonus.

Exceptions exist in the following cases, for example:

  • if a “skeleton staff” of sorts temporarily has to work for longer because otherwise outcomes would not be achieved or disproportionate damage would result for the company,
  • in the case of research and teaching,
  • if preparatory work and closing operations cannot be delayed,
  • if people require treatment, care or assistance and this work cannot be delayed,
  • if animals require treatment or care and this work cannot be delayed.

Workers are protected from unfair dismissal by legislation (the Unfair Dismissal Protection Act (Kündigungsschutzgesetz)). In unfair dismissal proceedings before a court, the employer must provide evidence that a dismissal is warranted in social terms. The dismissal can be warranted in social terms on the following grounds:

1. Grounds relating to the person, for example:

  • a sudden and extreme decline in the employee’s performance,
  • the employee is no longer physically or mentally capable of carrying out the work,
  • the employee is absent due to long-term illness or very frequent short periods of illness and his or her incapacity for work places a particular burden on the organisation.

2. Grounds relating to the employee’s conduct, for example:

  • a refusal to work, constantly arriving late, pretending to be ill,
  • fraudulent expenses claims, insults or violence in the workplace,
  • theft and embezzlement in the organisation.

Please note: If you are dismissed on grounds of conduct, the dismissal is only valid if the employer has previously warned you about the misconduct which forms the grounds for the dismissal. The warning must always include a statement that repetition will result in dismissal.

3. Grounds relating to operational changes which justify a reduction in personnel or jobs, for example:

  • a decline in orders,
  • changes to production methods,
  • partial or complete closure of the organisation.

Please note: In the case of a dismissal for operational reasons, if there are several employees who could be considered for dismissal, the employer must apply “social criteria” in the selection process. When deciding who has to leave the organisation, priority is given to keeping on employees who
• have been employed the longest by the organisation,
• are older,
• have dependants,
• have a severe disability.
Irrespective of this, the employer can retain those employees who are essential to the organisation due to their special skills and capabilities. If you are affected by a dismissal for operational reasons, you can demand that the employer disclose the reasons for the selection.

In this case, you can take your holiday leave the following year, within 15 months.

Example: You were unable to use your 2014 holiday entitlement due to an illness in 2014. In this case, you must take your 2014 leave by 31 March 2016. Any days of leave from 2014 which you have not taken by 31 March 2016 will lapse.

Employment may only be terminated without notice if either the employee or the employer cannot reasonably be expected to continue the employment relationship. The trust between the employee and employer must be so badly damaged that a notice period is not an option.

Examples of grounds on the employer’s side:

  • The employee persistently refuses to carry out work, is constantly late, or fakes an inability to work
  • The employee reveals trade secrets, or persistently violates occupational safety and health provisions or other secondary obligations.
  • The employee insults his or her colleagues or supervisors in the workplace.
  • The employee commits criminal offences or is suspected of having committed a crime.

Examples of grounds on the employee’s side:

  • The employer fails to pay or underpays the employee for a significant period.
  • The employer endangers the employee’s life or health.
  • The employer commits criminal offences against the employee.

In almost all cases, employment can only be terminated without notice if a warning has been given – including by the employee to the employer – without this having resolved the situation. This means that the person concerned must previously have had their attention drawn to their misconduct. However, in certain special cases, for example if a criminal offence has been committed, no warning is required.

In organisations with a works council (Betriebsrat), the works council must be notified of every dismissal by the employer. In certain cases, the works council can contest the dismissal.

Employers are not permitted to dismiss the following people at all, or are required to obtain approval from a public authority prior to their dismissal:

  • Pregnant women,
  • People on parental leave,
  • People with a severe disability,
  • People who are providing care for a family member,
  • Members of the works council (Betriebsrat) and the apprentices’ representative committee (Auszubildendenvertretung).