The laws about employees and Kurzarbeit

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On Friday 15th January my employer announced, without any previous notification or warning, that half the company would be put on Kurzarbeit with various degrees from 60% to 100%. The kurzarbeit started the next week. It's a small company with no Betriebsrat so that it happened suddenly and some degree of chaos is no great surprise however what is a surprise is who was selected. This is seemingly random and arbitrary, the logic and reasoning offered is twisted and full of half-truths.

 

It seems that some employees are sharing a disproportionately heavy burden and others, in exactly the same situation, are still working 100%. The employer has offered no support or assistance, either financially or in advice, and the chosen employees are expected to just deal with it. Even with the governments top-up money this still means a very significant loss of income to those on Kurzarbeit.

 

As I say, it's a small company, we're all 'per du' and I'm not sure that there's any mobbing going on or even a hidden agenda, even though some suspect that, but I find the situation grossly unfair on some who have been selected. The company is doing badly at the moment and needs to save cash short term but it has every expectation to do better in the near future. Kurzarbeit is the ideal method to deal with this cash shortage but the way it has been done is unfair. There's no Betriebsrat so it's every one for themselves, everyone selected voluntarily signed the acceptance letter and went on Kurzarbeit but now the full details are emerging some feel unfairly victimised.

 

So, what are the legalities of the situation? Can the employer select at random, what grounds would employees have to seek redress in the courts and what should be attempted to prevent a court case? What advice would the great and good on TT offer?

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I hate to be the bearer of bad news, but if everyone signed the paper accepting the Kurzarbeit, you're SOL. According to this website I found, if your company doesn't have a Betriebsrat, then an Individualvereinbarung (which is what you signed) is the prerequisite to putting an employee on reduced working hours.

 

But you can also look at the bright side: it's better than being laid off, which is probably the only alternative if the company is not doing well, as you say.

 

If some people really feel they are being singled out unfairly, they can watch the clock and make sure your employer isn't cheating (i.e., putting them on 50% KUG and having them work 75%) - but that would only help in getting even (by reporting them to the Arbeitsamt), not getting back on full-time pay.

 

Good luck, and maybe it's time to polish up your CV.

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Thanks for the info, it's more or less what I expected.

 

Of course the form was signed before the whole scope of the KA action was known, now the full truth is out it seems that it wasn't done transparently. Everyone here knows that we must save money but by saying 'you take 60% kurzarbeit, but you work full time' it's essentially saying to one they should just bugger off but can it be illegal to do that? It's a pretty clear signal and there is a certain amount of CV polishing going on.

 

Amusingly enough one of the bosses subsequently stated that kurzarbeit was better than betriebsbedingte kuendigung because the latter raises costs in the short term as the abfindung must be paid. Nice to know who's side he's on.

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That's just what I was saying in my third paragraph: 'you take 60% kurzarbeit, but you work full time' basically amounts to fraud on the part of your employer. I've read a few reports of the BA investigating cases like this. Unfortunately, this doesn't help you unless you want to try to blackmail them or report them, neither of which will earn you any favor from your bosses, nor will it get you back on full hours/pay.

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Are you in a Union? What you did in the old days was, of course, strike or "take industrial action". These sorts of processes like short time working or redundancy are rarely "fair" of course (even if the processes are gone through) for a variety of reasons.

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Our company is also on Kurzarbeit, but I don't find it that bad. I'm on 50% (as are a lot of people) and I still get 84% of my pay with the government top-up. Not too bad for 20 hours work a week I think! And I take more holiday because it's easy to have long weekends with only 20 hours! Of course, I have a partner on full time work and no family to look after.

 

Our company seems to have worked things out pretty well though. Initially (it's coming up 1 year that we've been on this) everyone was put on 50% except the Business Development team who are there, afterall, to get us more customers. It kind of sucks though, they still get to travel...

 

Now, some people aren't working at all (but technically haven't lost their jobs I think) and I think some people are on 75%, it just depends on who is needed more.

 

Sorry that this doesn't really answer what you asked though.

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So employers can use factors like how many children you're supporting to determine who gets to stay home and be poor and who gets to work. This is what I'm trying to find out - what rules, if any, must an employer follow when choosing who gets kurzarbeit or if they can do whatever the hell they want.

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Well, I don't know what the laws are on this, but I know my bosses did say something about looking at family situation alongside workload when they start bringing people up to 100%. I think they are doing this because they are pretty family orientated and while it may sound like it, they aren't trying to rip others off. They also look at if you have a partner and if they work full time. For my employers, workload is definitely still the most important factor. They've actually handled the whole situation very well.

 

Sorry I can't really help you.

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There are no rules how kurzarbeit should be divided. My neighbor is the database admin for his company, pretty important job you would say, he was put on kurzarbeit although it is his area that needs to be running, continuously and without interruption. his company is pretty strict about making sure he does not work from home on his day "off". a friend works for a consulting house and they based their choices on how many days the consultant was able to book, so that was very transparent. of course now they are all over their heads in work cause contracts are back on and they are all buried in work.

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and in some situations the loss in income on 50% to 70% is not much, esecially if you gét stuck on the edges of a few benefit threshholds and think of the free time

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It's true that having government financial support to stay home and do what you like doesn't sound like the worst thing in the world but that's not what I'm driving at. Perhaps, in the interests of research, I'll phone the arbeitsamt and ask them...

 

For example in our office we have a new starter on probezeit but he's working 100%. His impact on customers is zero as he has not delivered anything yet, he could even be fired with no expense. Why would he escape the kurzarbeit yet others get clobbered? It makes no sense to me.

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Some days ago my boss suddenly told me that I would be put on Kurzarbeit from mid April. I asked him how many hours I would work in the coming months . He failed to give me a definite answer. It can be any thing between 0 to 50% of the full time work.

 

Now I am confused about the salary calculation. I checked this website (http://www.kurzarbeit-aktuell.de/). But,

my German language skill is not good enough to find out the required info.If I work for ,say , X hours , then how much will I get

from the government? What about the salary if do not work at all in one month?

 

Anyway, there are some other tricky issues about this Kurzarbeit program. How the holdays will be calculated? My latest job contract for this year started from last June and end on June 31, 2011. Till mid April I will work full time. According to the job contract letter, I am allowed to enjoy 30 days paid leave for every job year. So far , I have taken 10 days of paid leave. Now i am wondering how the rest of the paid holidays will be calculated? Any idea?

 

Although Kurzarbit is better than lay-off , I am wondering about this lay-off scenario. I have been working in Germany since May 2006 and now I have Beschäftigung erlaubt with ( $ 18. Abs.4 S.1 AufenthG ) on my passport. However, if I am laid off or if I myself quit the job , will I continue to get the unemployment benefits till the end of my visa?

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The Kurzarbeitergeld paid by the government is 60% of the difference between the salary received for the hours worked that month and the contractual salary (67% if there's a Kinderfreibetrag of at least 0.5 on your LSK), with the maximum contractual salary up to which Kurzarbeitergeld is paid being 5.500 Euro (West Germany). If you work varying hours, the average over a certain period in the past is taken (iirc either the last 3 months or the last 12 months).

 

Holidays etc all remain at "full". If the Arbeitsagentur thinks you're not working enough, they can call on you to find a second job for the period you receive Kurzarbeitergeld, and you're required to cooperate.

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Hi Kato,

 

Thanks a lot for your explanation. By the way, I an confused about your following statement.

 

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67% if there's a Kinderfreibetrag of at least 0.5 on your LSK)

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I think , LSK means Lohnsteurkarte, am I right?

 

Recently my wife alongwith my child has arrived in Germany. For one child , Kinderfreibetrag ( child allowance ) will be 0.5 on my LSK , am I right?

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Yes. Only the child is relevant btw (or rather that you have the child registered on your LSK), not the wife.

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Hello,

 

My company has been on kurzarbeit since April. I found a new job in the meantime and put in my notice at my company. There is a 3 month notification period for when you quit. My question is... are there any "loop holes" that while in kurzarbeit you are able to leave the company faster then the 3 months stated in your contract? Also, someone mentioned that since I've quit I am entitled to my FULL salary during my 3 month notification period.

 

Does anyone have any additional information on this topic? Any information/advice would be greatly appreciated. I am trying to leave my current company as soon as possible because I have a full time job, with a larger pay check waiting for me!

 

Thanks.

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About Kundigung there's nothing special about the notice period

 

 

Für Kündigungen, die durch den Arbeitnehmer ausgesprochen werden, gilt nach § 622 Abs. 1 BGB eine vierwöchige Kündigungsfrist (28 Tage!) zum 15. eines Monats oder zum Monatsende.

 

Aber auch andere Kündigungsfristen können für den Arbeitnehmer gelten, sofern sie vertraglich und nicht zun Nachteil des Arbeitnehmers vereinbart wurden. Ein Nachteil wäre beispielsweise, wenn die Kündigungsfrist für den Arbeitnehmer länger wäre, als die des Arbeitgebers. In diesem Fall wäre die vertragliche Vereinbarung ungültig und an ihrer Stelle würde die gesetzliche Kündigungsfrist greifen. Vereinbaren Arbeitnehmer und Arbeitgeber aber, dass für beide Seiten gleich lange Kündigungsfristen gelten, so ist diese Vereinbarung gültig und auch wirksam.

 

 

 

This says essentially that if your contract is valid then your notice period is there.

 

Edit, sorry my mistake - you get your full money

 

Erlöschen des Anspruchs auf Kurzarbeitergeld durch Kündigung

Spricht der Arbeitgeber die Kündigung gegen einen seiner Beschäftigten aus, erlischt gleichzeitig der Anspruch auf Kurzarbeitergeld (§ 172 Abs. 1 Nr. 2 SGB III) für diesen Mitarbeiter, da die persönlichen Voraussetzungen für Kurzarbeit (vorübergehender Arbeitsausfall) nicht mehr erfüllt sind. Gleiches gilt bei einer Kündigung durch den Arbeitnehmer. Damit muss das Unternehmen ab dem Zeitpunkt der Kündigung wieder selbst für die Entgeltansprüche bis zum Ausscheiden des Mitarbeiters aus dem Betrieb (also dem Ablauf der Kündigungsfrist) aufkommen. Dabei muss unabhängig von der Kurzarbeit der volle Lohn (wie vor dem Arbeitsausfall) gezahlt werden.

 

 

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I would have though that if you're on Kurzarbeit (presumably because your company wants to save money), it would be fairly easy to negotiate an early release, especially if they'll have to pay your full salary during the notice period. Have you asked them?

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Yes, I have asked them to leave early. And, my new employer also thought that I would be able to leave quickly. But, unfortunately my company wants me to stay the whole 3 months. I haven't discussed with them the fact that they will have to pay me my whole salary, yet. Does anyone know how that will work... I've only worked 50% in July, but they are still to pay me my full salary?? How does that work?

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The quote above says that from the time you give your notice in you get your full money - although it's probably from the time your notice period starts, I would guess, so if you gave your notice in in July your notice period starts end of July (for example) and so from 1st August until you leave you're working and paid full time. Ask your HR dept if you feel you can trust your employer, or a lawyer or your Betriebsrat if you feel you can't.

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