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2018 Threshold Values in Labour Law

Employment Law – good to know...

March 2018

Many rights and duties of an employer are directly linked to the number of employees. The protection against unfair dismissal and the size and composition of the employee representative bodies and of the supervisory board, for example, depend on whether certain numbers of employees – so-called threshold values – are exceeded. Threshold values also influence many other topics, however, such as the duty to set up a social compensation plan, the duty to issue a notification of mass dismissals or to employ severely disabled persons.

Just like last year, we have compiled the most important updated labour law threshold values in the attached overview.

New threshold values have been added owing to the German Transparency of Remuneration Act (Entgelttransparenzgesetz). As of 6 January 2018, employers in establishments with more than 200 regular employees must provide employees with information regarding, amongst other things, the median of the gross monthly remuneration and up to two further pay components if at least six employees of the opposite sex perform the same or equivalent work. For more information on the entitlement to information pursuant to the German Transparency of Remuneration Act please visit: Link to the Newsletter.

The overview lists the threshold values mentioned in the relevant statute. When using the overview, you must take into account, however, that the threshold values are not always calculated in the same way. Some examples:

  • Some regulations take the number of employees in the affected establishment as a basis, others the number of employees in the company. We have marked this with symbols in our overview.
  • In some cases, the rules are based on the "employees regularly employed", but sometimes also on the annual average numbers or the number of employees on specific reference dates. In addition, part-time employees are counted differently (headcount or pro rata).
  • The question as to what groups of employees (e.g., apprentices or temporary employees) are to be included in the calculation of the threshold values is approached in different ways by the regulations.
  • At present, only those employees who are employed in establishments in Germany must be taken into account when calculating the threshold values. Case law is in a state of flux in this regard, however; changes cannot be excluded.

Against this background, the overview serves as a first source to gain information. An exact determination of the threshold values in the individual case, however, requires a detailed review as to what calculation principles apply to the individual rule.

A. Number of Works Council Members (§9 German Works Constitution Act (BetrVG))

Table A

In establishments with more than 9,000 employees, the number of work council members will increase by two members for every additional fraction of 3,000 employees.

B. Number of Members Released From Their Work Duties (§ 38 German Works Constitution Act)

Table B

In establishments with more than 10,000 employees, one further works council member must be released for each additional fraction of 2,000 employees.

C. Income thresholds for the Assessment of Social Security Contributions (per month)

Table C

D. Other Threshold Values

Table D
Table D2
Table D3

Notes: The exact calculation of the threshold values may differ, for example, in view of the consideration of apprentices and/or temporary employees, the definition of the term "establishment" and the significance of part-time employees or external managing directors. Threshold values regarding specific employee groups, such as disabled people, adolescents, executive employees or officeholders, are (at least in part) not listed. Provisions that exclusively apply to maritime business or the public sector are not listed either. The overview is not exhaustive; the threshold values set out in the German Data Protection Act (BDSG), German Maternity Protection Act (MuSchG), Book III German Social Security Code (SGB III), Book V German Social Security Code (SGB V), Book VII German Social Security Code (SGB VII), German Act an Occupational Physicians, Safety Engineers and Other Occupational Safety Specialists (ASiG), §§ 28 a, 92 a II, 110, 112 a German Works Constitution Act (BetrVG), for example, are not included.

Employment Law - good to know: 2018 Threshold Values in Labour Law
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Stefan Schulze, LL.M. (University of Cape Town)