Coronavirus and legal issues

Proportionate reduction of holiday entitlements in the case of short-time work - 12.5.2021

In a new decision by the Düsseldorf Regional Labor Court (judgment of March 12, 2021 - 6 Sa 824/20), the judgments of the European Court of Justice (ECJ, judgments of November 8, 2012, C-229 /11, C-230/11) confirms that for periods in which employees have not worked continuously due to "zero short-time work", they do not acquire any new holiday entitlements.

The LAG Düsseldorf ruled that the employee had not acquired any holiday entitlements in accordance with Section 3 BurlG for the period in which she was continuously on "zero short-time work". This means that she is only entitled to a proportion of the annual leave for 2020. The court went on to say that the employer is entitled to reduce the total holiday entitlement by 1/12 for each full month of "zero short-time work".

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Effects of closure ordinances on existing commercial leases - 16.4.2021

In our article from January 27th, 2021, we had already drawn attention to the new regulation included in the law regarding the effects of closure ordinances on existing commercial leases, in particular with regard to ongoing rent payments (§ 7 of Art. 240 EGBGB).

In the meantime, several courts have dealt with this legal presumption of the omission of the business basis, whereby the opinion seems to prevail, according to which the risk should be shared equally, so that at least the cold rent can be reduced by 50% (at least according to: OLG Dresden, judgment of 24.02 .2021 - 5 U 1782/20; also agreeing in principle: KG Berlin, decision of March 11, 2021 - 8 U 1106/20).
In some cases, it is also argued in case law that the consumption-independent operating costs can also be reduced by 50% (cf. Mönchengladbach District Court: judgment of November 2nd, 2020 - 12 O 154/20).

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New CORONA regulation in commercial tenancy law to disrupt the basis of business - Jan 27th, 2021

The question, which was still highly controversial in literature and case law until the end of last year, whether a commercial tenant can reduce his rent if he is not allowed to open his business due to a corona closure order (lockdown) (cf. approvingly: LG Munich I, judgment of 22.09. 2020 - 3 O 4495/20; rejecting: LG Frankfurt / Main, judgment of 02.10.2020 - 2-15 O 23/20 u.A.), was now applicable by § 7 of Art. 240 EGBGB, which came into force on 31.12.2020 regulated by law. According to this, it is assumed that a circumstance within the meaning of § 313 paragraph 1 of the German Civil Code, which has become the basis of the rental agreement ("business basis"), has changed significantly after the conclusion of the contract, insofar as rented properties or rented rooms that are not residential as a result of government measures to combat the COVID-19 pandemic, they cannot be used for the tenant's business or can only be used with considerable restrictions.

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Tax return obligation for short-time work - 01/27/2021

All employees who received more than €410 in short-time work benefits in 2020 are required to file an income tax return. The deadline for submitting the tax return ends on July 31, 2021 if there is no representation by a tax consultant or an income tax assistance association. In individual cases, however, employees affected by short-time work can still respond to the challenge of having to submit a tax return back taxes to be paid. The short-time allowance itself is considered tax-free. As a wage replacement benefit, however, it is subject to the so-called progression proviso. This means that the short-time allowance increases the tax rate that is payable on taxable income. The wage tax deducted from the gross wage is then usually no longer sufficient to settle the income tax claim in advance, which leads to additional claims from the tax office.

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Change of legal sphere through home office - 27.01.2021

In pension insurance, a distinction is made between the legal group East (new federal states including East Berlin) and the legal group West (old federal states including West Berlin). Different operands and regulations apply to both legal systems. For example, the amount assessment limits, but also the pension values, differ depending on whether you belong to the legal group East or to the legal group West. According to § 9 SGB IV, the place of employment is the place where the employee actually works. This is usually a permanent establishment of the employer. Irrespective of his place of residence, the employee then falls under the legal system that applies to the employer's business premises. However, this can be different when working from home.

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Subsidy for short-time work benefits - April 21, 2020

Many companies are currently affected by lost working hours and have already had to agree short-time work with their employees or intend to do so in the near future.

If the employer has agreed on temporary short-time work with his employees and has notified the Federal Employment Agency of this, he then calculates the short-time work allowance to be paid and pays it to the employees. The amount of the short-time allowance depends on the net loss of earnings. As a rule, employees receive 60% of the lost flat-rate net remuneration. If at least one child lives in the household, this rate increases to 67%. The loss of earnings is calculated from a comparison between the gross earnings that would have been earned without the loss of work (although this does not take into account one-off payments or remuneration for overtime) and the gross earnings actually achieved.

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Information for employees - 03/16/2020

Employees who are not ill themselves and are not in quarantine themselves and are only unable to work because the company is closed or no longer have any orders are entitled to full wages in case of doubt. We lawyers call this default of acceptance by the employer. The employee offers his service, the employer does not accept it. However, "when in doubt" means the following: It is a question of the individual case whether the specific closure of the business is really part of the operational risk of the employer, i.e. whether he bears the legal responsibility for the delay in acceptance. Businesses are currently being closed in Berlin for very different reasons. In some cases, this is ordered by the authorities. But here, too, it must be carefully checked in each case whether such an order is actually part of the classic risk of the employer or not. If the employer does not close due to an official order, but because orders broke away or the customers or the goods no longer come, this would basically be part of the employer's operational risk. It is not certain whether the courts also see this as a general "shut-down".

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Information for employers - 03/16/2020

Insofar as you, as an entrepreneur or employer, are affected by the new Berlin "closure" regulation (SARS-CoV-2 containment regulation - SARS-CoV-2-EindV) and your company was already closed last weekend or this is imminent in the next few days , it must be carefully checked what to do next. The ordinance may be illegal, but one must seriously ask oneself whether urgent court applications are currently being processed at all.

In our opinion, it is unfortunately also completely unclear whether the officially ordered closure of the business entitles the self-employed to compensation for personal loss of earnings in accordance with Section 56 (3) InfSchG i. V. m. 15 SGB IV exists. In our opinion, the law is "not at all prepared" for this case. The further problem is that a claim for reimbursement under this law would presuppose that the regulation was lawfully issued on the basis of this law, which - as stated - is doubtful. In any case, you will need the latest income tax assessments and, if necessary, the current BWA for a possible refund application.

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Childcare - 03/13/2020

Loss of work due to the need for childcare

There is no explicit provision in the law as to what happens to wage claims if employees (have to) stay at home to look after their children. Basically, § 616 BGB would be relevant. Accordingly, the employee does not lose his entitlement to remuneration if he is prevented from performing his work for a relatively insignificant period of time for a personal reason through no fault of his own. In the event of unforeseeable school closures due to an impending storm for a day or two, the standard seems to be applicable without any problems. The personal reason is the (legal) duty of care of the employee towards the child. A day or two is undoubtedly a comparatively insignificant time...

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Short-time work - 03/12/2020

Due to economic reasons or unavoidable events, it can happen that a company is temporarily affected by a significant loss of working hours and the employer has to temporarily reduce the regular working hours of his employees. Economic causes that can lead to a reduction in working hours are all causes that have a direct or indirect effect on the company's economic processes, for example because raw materials cannot be supplied by supplier companies. Unavoidable events that can lead to a reduction in working hours are always given if they are due to force majeure or even measures or orders from an authority, as long as the employer is not responsible for them. These can be unusual weather conditions or protective measures ordered by the authorities, such as the closure of an entire company.

However, it is important that the employer cannot unilaterally order short-time work. In companies with a works council, a corresponding agreement with the works council is required. If there is no works council, the employer must make a separate agreement with each employee.

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