Legally compliant HR processes for your company
Efficient and legally compliant HR processes for sustainable success
Efficient and legally compliant HR processes for sustainable success
Are you unsure about how to write your job posting? What questions are acceptable in an interview? What standards apply to references?
Efficient and legally compliant HR processes are crucial to your company's success. Violations of the GDPR or the General Equal Treatment Act (AGG) can quickly lead to significant fines.
Our employment law firm offers comprehensive support in the development and implementation of your HR processes. From drafting job advertisements and interviews to drafting employment contracts, terminations, and the preparation of employment references – we are your experts for legally compliant HR processes.
With our many years of experience and in-depth knowledge of labor law, we ensure that your company is always legally protected. Rely on our customized solutions and professional advice to avoid legal pitfalls and optimize your HR processes.
Contact us for a non-binding initial consultation and benefit from our expertise.
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Our experienced R&U lawyers will evaluate your case independently and objectively. Call us +49 (0)211 / 819770 or fill out the contact form. We will get back to you shortly.
Job advertisement
- A job posting informs both internal employees and external interested parties about an open position. It contains a brief description of the requirements and the position itself.
- The General Equal Treatment Act (AGG) prohibits discrimination in job advertisements (Sections 11, 7, 1 AGG). Employers must ensure that their job advertisements are free of discrimination. This includes discrimination based on gender, age, ethnic origin, religion, or sexual orientation. Be careful to avoid wording that could imply discrimination based on age or gender.
- Minimum content of a job advertisement: Although there are no legal requirements for the content of job advertisements, certain minimum information should be included to fully inform potential applicants. Important information includes:
- Department
- Job title
- Professional and personal requirements
- Wage and salary group
- There is no legal minimum application deadline; however, two weeks is common. An increase in weekly working hours must be advertised if it is more than marginal (at least 10 hours per week for one month).
- Are you unsure what to include in your job posting? Visit our employment law firm for advice! Avoidable mistakes can quickly become costly.
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3Internal job advertisement and involvement of the works council
The Works Constitution Act (BetrVG) regulates the co-determination rights of the works council regarding job postings. According to Section 93 of the Works Constitution Act, the works council has the right to demand that vacant positions be advertised internally before they are filled. This right does not apply to senior managers, but does apply to temporary workers and freelancers, provided the appointment is subject to co-determination.
Employer’s obligations when applying for jobs
According to Section 99, Paragraph 2, No. 5 of the Works Constitution Act (BetrVG), the works council may refuse to approve a hiring decision if the employer fails to advertise vacant positions internally, despite a request to do so. If the internal and external job advertisements are consistent, the employer is entitled to consider external applicants.
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Employer’s obligations when applying for jobs
Obligation to provide information to applicants: Employers are required to provide applicants with comprehensive information about specific job requirements and potential stressors. These include:
- Above-average job requirements
- Exceptional health problems
- Possible insolvency of the company
- Possible loss of the job due to organizational restructuring
- Expectations regarding the conclusion of the employment contract
Employers must not create unrealistic expectations regarding the successful conclusion of a contract. It is unlawful to encourage applicants to terminate their current employment prematurely without a binding commitment. If the contract is unexpectedly not concluded, the employer may be held liable if the applicant resigned from their previous position in anticipation of the new job.
Handling application documents: Application documents must be treated confidentially. If no employment relationship is established or the documents are no longer relevant after the contract has been signed, the employer is obligated to either return them or destroy them.
Reimbursement of application costs: Employers may be required to cover interview costs unless explicitly excluded. Eligible costs include:
- travel costs
- Overnight costs
- loss of earnings
If the employer clearly states in the invitation to the interview that no costs will be reimbursed, the applicant will bear these costs themselves, regardless of whether an employment relationship is established or not.
In companies with more than 20 employees, the employer is obliged to inform the works council before each hiring and to obtain its consent.
Inadmissible and permissible questions in a job interview
Employers want to get to know applicants thoroughly before hiring them, but not all questions are permitted. Questions that violate privacy rights are prohibited. Applicants may give false answers or withhold details to such questions. These prohibited questions include:
- Questions about pregnancy and family planning
- Questions about religious, party or trade union affiliation (with exceptions for political organizations)
Acceptable interview questions: Questions relating to professional suitability and the specific job are permissible and must be answered truthfully. These include:
- Questions about your CV and previous professional experience
- Questions about knowledge and skills
- Questions about consent to shift work or transfers
Situation-dependent questions: Some questions are only permitted under certain conditions, usually relating to specific requirements of the position sought:
- Illnesses or severe disabilities: Only permitted if they affect the intended activity (e.g. limitations of physical capacity, infectious diseases).
- Financial circumstances: Only permitted if the position involves significant financial decision-making authority.
Not sure what questions you can ask when applying? Get advice on these and other topics from our employment law firm! We'll help you design legally compliant HR processes!
Duties and rights of the employee during the job interview
Employee’s duties:
- Truthful answers to permissible questions: Applicants are obliged to answer permissible questions truthfully during the interview.
- Notification of service restrictions: Applicants must inform the employer if they are unable to perform certain tasks required in the employment contract.
Employee rights:
- No obligation to disclose disabilities: Applicants are not required to disclose a disability voluntarily as long as it does not affect their job performance. However, there is an exception for severe disabilities that could affect their work.
- No information about current earnings: Applicants are not required to disclose their current salary.
- No obligation to notify in case of pregnancy: Applicants are not obliged to disclose an existing pregnancy as long as it does not have a negative impact on their work performance.
Did your employee lie to you during the interview? Our employment law attorneys will be happy to explain the legal consequences to you!
Termination under employment law – What you need to know
Reasons for termination:
- Dismissal for behavioral reasons: This type of termination occurs in the event of breaches of employment contract obligations, such as frequent unexcused absences, refusal to work or misconduct in the workplace.
- Termination for personal reasons: This comes into effect when an employee is no longer able to fulfill their contractual obligations due to personal characteristics or abilities. Examples include long-term illness or the loss of required professional qualifications.
- Dismissal for operational reasons: A dismissal for operational reasons occurs when operational requirements make it impossible for the employee to continue working at their current position. Reasons for this may include rationalization measures, a decline in orders, or site closures.
Certain groups of employees enjoy special protection against dismissal, including:
- Pregnant women
- Parents on parental leave
- Works council members
- Severely disabled people
For these groups, termination is only possible under strict conditions and often only with the consent of the relevant authorities.
Scope of the Dismissal Protection Act (KSchG): The Dismissal Protection Act (KSchG) applies to companies that regularly employ more than 10 people. Less strict dismissal protection regulations apply to smaller companies.Legally secure termination? Involve an employment law attorney in the termination process! We're happy to help.
Creating a reference – A guide
A reference is a written confirmation from the employer regarding the duration, content, and progress of an employment relationship. It evaluates the employee's performance, behavior, and cooperation with superiors and colleagues.
Content distinction:
- Simple certificate: Describes the type and duration of employment.
- Qualified certificate: Also includes an assessment of performance and behavior.
Temporal distinction:
- Interim report: Issued during an existing employment relationship.
- Preliminary certificate: Issued shortly before the end of the employment relationship.
- Final certificate: Is created at the end of the employment relationship.
Legal basis for employment references:
- For employees: § 109 GewO; Employees are entitled to a final reference upon termination of the employment relationship, which also assesses their performance and conduct.
- For trainees: § 16 BBiG; Upon completion of the examination, trainees are entitled to a certificate detailing the type, duration and objective of the training as well as the skills and knowledge acquired.
- For other employees: Section 630 of the German Civil Code (BGB); Employees who are not considered employees but have provided services are also entitled to a reference.
Uniform certificate law: The legal provisions are largely uniform, so that a uniform law on references applies regardless of the employee group. The case law of the labor courts, in particular the Federal Labor Court (BAG), is applicable to all types of employment references.
Formal requirements for employment references: A reference must be written and signed. Electronic formats are not acceptable. The reference must be clean, neat, and printed on high-quality paper with current company letterhead. Unclear references, corrections, or secret symbols are not permitted, as they could reveal the identity of the issuer.
Signing the employment reference: The employer is obligated to issue and sign the reference. Senior managers who are higher in rank than the employee being evaluated may also sign on behalf of the employer. In the case of senior managers, a member of management must sign and indicate their position.
Rejection of a reference by an employee: Employees can request a new reference if it contains false facts or inaccurate assessments that could impair their career advancement. Labor courts can review and rewrite the reference. The employer may not refer to the court ruling or a settlement.Do you need legal help with preparing employment references? Contact our employment law firm! We will be happy to assist you in preparing legally compliant employment references.
Legally compliant HR processes for companies: Your experts in employment law
Our firm specializes in providing legal advice and support to companies in the design and implementation of legally compliant HR processes. We offer customized solutions to ensure your HR processes are efficient and legally compliant.
Our services at a glance:
- Job advertisement:
- Legally compliant design: We support you in drafting job advertisements that comply with legal requirements and avoid discrimination.
- Advice on AGG: Ensuring compliance with the General Equal Treatment Act (AGG).
- Application:
- Optimization of the application process: Advice on permissible and impermissible questions in job interviews.
- Data protection compliant handling: Support in the legally compliant processing of applicant data in accordance with the GDPR.
- Employment contract:
- Individual contract design: Preparation and review of employment contracts tailored to the specific needs of your company.
- Legal protection: Ensuring compliance with all labor law regulations and protection against legal pitfalls.
- Termination:
- Consulting and implementation: Support with ordinary and extraordinary terminations, including compliance with formal requirements.
- Protection against dismissal: Representation in unfair dismissal claims and avoidance of legal disputes.
- Certificate issue:
- Legally binding certificates: Preparation of simple and qualified employment references in accordance with legal requirements.
Advice on disputes: Support in disputes about the content of employment references.
Why our law firm?
- Experience and expertise: Many years of experience and in-depth expertise in labor law.
- Individual solutions: Tailor-made consulting and implementation tailored to the specific requirements of your company.
- Reliability and professionalism: Trust in our professional and discreet approach.
Benefit from our expertise in employment law and legally secure your HR processes. Contact us for a non-binding initial consultation. We are your competent partner for legally compliant HR processes.
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