Working on garden leave

[ExPattheDog 37]

Hey folks, so I'm in a bit of an annoying situation with a soon to be former employer

 

Late last month, I let my boss know I was strongly considering joining a competitor after I received an offer, and before I was even able to officially resign, they put me on immediate garden leave

 

During the conversation when my boss told me I would be disconnected from all systems within the next few minutes, he also asked if I wanted to work the full notice (3 mo) and I said I would rather end Oct 15 to which he agreed

 

After getting effectively booted out, I communicated the desire to start on October 17th to the new employer 

 

Over the last 2 weeks I didn't hear anything from the old employer, but yesterday they said I would need to remain employed for a minimum of 2 months on garden leave -- so until Nov 30. This seems odd to be because its an unnecessary expense for the company to keep me longer

 

My old contract says I can't work for a competitor while employed, but I don't want to push the start date back 6 weeks

 

Hypothetically, could I legally begin to work "gratis" for the new company during the initial 6 weeks? I would let them know I'm willing to get started before officially beginning because the 6 week gap is annoying for them too and I'm genuinely eager to make an impact. Assuming no money exchanges hands until after the 6 week period, is this against my contract? I'm assuming so but double checking just in case.

[LeonG 14,810]

As far as I know, you can't work for free in Germany.  If authorities come visit your new employer, they can ask to see anybody's hours and pay slips to make sure you are all getting at least minimum wage.

[ExPattheDog 37]

7 minutes ago, LeonG said:

As far as I know, you can't work for free in Germany.  If authorities come visit your new employer, they can ask to see anybody's hours and pay slips to make sure you are all getting at least minimum wage.

 

If it helps, the new employer is based in the US where I'm also a citizen. I will get paid through an EOR once I begin. The work will be entirely remote.

[catjones 1,691]

40 minutes ago, LeonG said:

If authorities come visit your new employer,

 

and just how often does that happen?  

[LeonG 14,810]

43 minutes ago, ExPattheDog said:

 

If it helps, the new employer is based in the US where I'm also a citizen. I will get paid through an EOR once I begin. The work will be entirely remote.

 

In that case, the old employer is not going to be able to sick authorities on your new employer so they can't prove whether or not you are working or for how much.

 

11 minutes ago, catjones said:

 

and just how often does that happen?  

 

It happens quite fast if somebody feels the need to tip them off.  I've worked at a company here were this happened. 

[fraufruit 42,166]

But in the end, don't you have to claim your income from your new employer from the day you started? Also, the income you get on garden leave?

 

Could anyone put 2 and 2 together?

 

[ExPattheDog 37]

Thanks everyone 

 

basically until November 30 I would be officially employed and paid by, but on garden leave from, the old employer

 

But I would want to effectively volunteer with the new employer until December 1, after would ask not to get paid until after then. My official employment would begin only December 1

 

My concern is as it’s a competitor I’m legally barred from working there while on garden leave. This volunteership should be easy when working internally but when I’m client facing it could get more challenging- i.e. puts a risk it could come to my old employers attention. This is why I want to be sure I wouldn’t technically be breaking contract by volunteering in case it does come to light 

 

[ExPattheDog 37]

10 hours ago, fraufruit said:

But in the end, don't you have to claim your income from your new employer from the day you started? Also, the income you get on garden leave?

 

Could anyone put 2 and 2 together?

 

My income would begin on December 1 and I would volunteer earlier 

[vivanco 174]

16 hours ago, ExPattheDog said:

My old contract says I can't work for a competitor while employed, but I don't want to push the start date back 6 weeks

What will happen if you start working in garden leave? Fire you?? 

 

I think if you are able to keep yourself availaible  to your old company while working for your new company things should be fine. Just ask the new company to use tax.class 6 for tax purposes. Since the new company is American, you can ask to defer the payment 6 weeks. From the finanzamt point of view if tax is paid on all the income, you should be fine. 

 

16 hours ago, ExPattheDog said:

Hypothetically, could I legally begin to work "gratis" for the new company during the initial 6 weeks? I would let them know I'm willing to get started before officially beginning because the 6 week gap is annoying for them too and I'm genuinely eager to make an impact. Assuming no money exchanges hands until after the 6 week period, is this against my contract? I'm assuming so but double checking just in case.

 

[ExPattheDog 37]

11 minutes ago, vivanco said:

What will happen if you start working in garden leave? Fire you?? 

 

I think if you are able to keep yourself availaible  to your old company while working for your new company things should be fine. Just ask the new company to use tax.class 6 for tax purposes. Since the new company is American, you can ask to defer the payment 6 weeks. From the finanzamt point of view if tax is paid on all the income, you should be fine. 

 

 

Thanks 

 

My main concern is if they sue me 😅

 

Wouldn’t tax class 6 indicate I held both simultaneously? I think it might be safer to have my employment contract with the other begin dec 1 and literally volunteer until then. If they want to give me a bonus after then I’m open to it 

[vivanco 174]

11 minutes ago, ExPattheDog said:

 

My main concern is if they sue me 😅

 

In Germany the suing is for damages. Since you can't access old company's resources anyway, it will be hard to prove that your action caused them any damage. Only thing is that during the garden leave your old company can ask to be availaible for them during the working time. Which I believe you can based on your next job is for American company not in Germany. 

 

17 minutes ago, ExPattheDog said:

 

Wouldn’t tax class 6 indicate I held both simultaneously?

 

Yes to you, and the finanzamt. I doubt your old company can access either info about you. 

 

17 minutes ago, ExPattheDog said:

I think it might be safer to have my employment contract with the other begin dec 1 and literally volunteer until then. If they want to give me a bonus after then I’m open to it 

Better get paid instead of volunteering.. If your old company is going to take offence, they can take offence on your volunteering for the competitive company too. 

[lunasuenos 84]

I know when our operation closed a lot of they employes started new jobs quickly. They recived 50% payment of amount...but this was a large reduction snd works council was involved

[scook17 281]

On 11/10/2022, 16:44:33, ExPattheDog said:

Over the last 2 weeks I didn't hear anything from the old employer, but yesterday they said I would need to remain employed for a minimum of 2 months on garden leave -- so until Nov 30. This seems odd to be because its an unnecessary expense for the company to keep me longer

My old contract says I can't work for a competitor while employed, but I don't want to push the start date back 6 weeks

 

Typical non compete agreement. Are they even legal in Germany? I see this often with trying to hire employees. Employers write 3 month notice periods, meaning it's a PITA to change companies for permanent staff. As soon as you say you are going to a competitor, it can be the case you are immediately removed. The company can then be sensible and not pay this cost and agree you can start elsewhere immediately, or enforce the contract, meaning you stand a good change of loosing the new job whilst waiting around. Sometime such clauses can be six months plus for key people. Seems particularly punitive if applied across the board, rather than to the chief engineer of Google's AI division, if you ask me. Thus I ask if it's even legal in Germany?

 

BTW, if you are working for an American company now, unless they have an 'office' in Germany to handle the paperwork associated with German payroll, likely they will want you to be a freelancer. If so, you can put in an invoice for the work, whenever you wish, within reason. If you will become a freelancer, you need to register as such as taxes are quite different to being an employee. Make an appointment with a tax advisor if you plan to become a freelancer as they can do all the paperwork for you.

[dstanners 1,539]

Your employer supposedly wants you on garden leave to keep you out of the market. As long as they are paying you for this, there is no problem in them doing so. Volunteering for your new employer is definitely NOT keeping out of the market. 

Acting in bad faith will sour your relationships with your outgoing employer - you never know what the future will hold of if/how your paths with them (or any of their remaining employees) will cross.

So right now your employer is paying for you to sit at home and do nothing. Just enjoy it. The extra month will pass in no time at all.

 

Any decent new employer will understand that good staff often have restrictions upon joining. In fact, you can see it as a sign that you are a decent hire, that your current employer is desperate for you not to start working with a competitor straight away.

 

Oh, and breaking covenants is soooo easily found out. Some of the ones I've had to deal with include:

1) updated Linkedin account with new employer;

2) old company client accidentally emailing old employee via his previous email address;

3) old company client including old employee's new company email address in a list to all suppliers (i.e. including old employer);

4) old company client contact congratulating old employee on his new role with new employer;

5) Facebook, LinkedIn, Twitter photos of ex-client meetings, with old employee in attendance...I could go on, but you get the idea.

 

If your new employer is not a competitor of your current employer, and if you will be working in a completely different market, then speak to your current employer again and ask them to be more reasonable with you (to the extent that paying you to do nothing is already not unreasonable).

 

 

 

 

[LeonG 14,810]

1 hour ago, scook17 said:

Typical non compete agreement. Are they even legal in Germany?

 

As long as you are working for them, they can absolutely tell you who you can or can't work for.  Many contracts even include that you can't even take a mini job without permission.  That is apparently legal although the employer can not refuse without a reason such as being in competition or it affecting your day job.

 

A non compete agreement can require you to not work for a competitor for up to two years after your employment ends but since that will limit your job opportunities, they would have to compensate you for that.  You can agree with the employer on compensation between 50 and 110% of your old salary, however, your new job salary plus compensation shouldn't be more than 110% of your old salary so if it is, the compensation will be lowered.

[ExPattheDog 37]

On 12/10/2022, 09:17:50, vivanco said:

In Germany the suing is for damages. Since you can't access old company's resources anyway, it will be hard to prove that your action caused them any damage. Only thing is that during the garden leave your old company can ask to be availaible for them during the working time. Which I believe you can based on your next job is for American company not in Germany. 

 

 

Yes to you, and the finanzamt. I doubt your old company can access either info about you. 

 

Better get paid instead of volunteering.. If your old company is going to take offence, they can take offence on your volunteering for the competitive company too. 

My main concern is the new company could pull their offer due to the unexpected 6 week delay 

[Frantic 72]

have you tried to contact the new company and explain them the situation ? 6 week delay is nothing

 

PS: please don't tell them you are willing to work for free as a workaround.

[travelerworker 116]

Hi, 

don't know if this is of any help but here I go...

Time ago, I got an opportunity with a company, to do what I always wanted to do, so I wan't ready to loose the chance. They told me that needed me in 2 month, so I should sort with my actual employer the 3 month notice period.

As it was a bank as soon as I told my boss i was cut off from all the systems, I was just going to to office to sit and read a newspaper and help colleagues.

I told my boss: I will be here 2 months then I will be sick or whatever but I am not here the 3rd month. He wasn't happy but I did that.

Nobody bothered me, I just went. A company don't want to waste time and money with an leaving worker, unless you did something bad.

Anecdotally I got paid from both companies during that month.

Good luck!