NachwG 2022 — Day-One Written Employment Terms
The Nachweisgesetz (NachwG), as amended in August 2022 to implement the EU Transparent and Predictable Working Conditions Directive, requires employers to provide employees with written confirmation of 12 essential employment terms on or before the first day of work. Previously, the deadline was one month. Failure to deliver the written statement on time exposes the employer to a fine of up to €2,000 per violation. The NachwG applies to all employment relationships including mini-jobs and fixed-term contracts.
- 12 mandatory written terms from day 1 under §2 NachwG (Aug 2022 reform)
- Required fields include: start date, job description, place of work, salary, working hours, leave entitlement, notice periods, probation period, collective agreements
- Fine up to €2,000 per violation for late or missing written statement
- Applies to all employment types including mini-jobs and fixed-term contracts
- Electronic delivery of written statement is not sufficient — physical signature required
Unbefristeter Arbeitsvertrag — Standard Open-Ended Contract
The unbefristeter Arbeitsvertrag (open-ended employment contract) is the default and most common form of employment in Germany. It continues until one party gives notice in accordance with the statutory or contractual notice periods under §§622–623 BGB. An open-ended contract provides the employee with full access to KSchG dismissal protection after the 6-month Wartezeit (where applicable). Most collective agreements (Tarifverträge) are structured around the open-ended model and layer additional protections — longer notice periods, salary scales, and enhanced leave — on top of statutory minimums.
- Default employment form — no fixed end date
- Notice periods under §622 BGB: minimum 4 weeks to 15th or month-end; longer with seniority
- Full KSchG dismissal protection applies after 6-month Wartezeit (§1 KSchG)
- Tarifvertrag provisions layer over statutory minimums where applicable
- Written form required for validity under §623 BGB (termination must also be in writing)
Befristeter Arbeitsvertrag — Fixed-Term Contracts under TzBfG
Fixed-term employment contracts (befristete Arbeitsverträge) are regulated by the Teilzeit- und Befristungsgesetz (TzBfG). Without an objective reason (sachgrundlose Befristung), a fixed-term contract may not exceed two years and may be renewed a maximum of three times within that two-year period (§14(2) TzBfG). After the two-year maximum or the third renewal, the contract is deemed open-ended. Chained fixed-term contracts (Kettenbefristung) — a succession of fixed-term contracts designed to avoid permanent employment — are prohibited as an abuse of law. Fixed-term contracts require written form to be valid (§14(4) TzBfG).
- Without objective reason: max 2 years, max 3 renewals (§14(2) TzBfG)
- With objective reason (sachlicher Grund): duration flexible — e.g. project-specific, maternity cover
- Kettenbefristung (chaining) prohibited as abuse of law
- Written form required before work starts — verbal agreement is void (§14(4) TzBfG)
- Prior employment with same employer within 3 years bars sachgrundlose Befristung
Probezeit — Probationary Period
German law permits an agreed probationary period (Probezeit) of up to six months (§622(3) BGB). During the Probezeit, either party may terminate the contract with only two weeks' notice, compared to the standard four weeks for ordinary employees. There is no requirement to provide reasons for termination during the Probezeit, and KSchG dismissal protection does not yet apply (as the 6-month Wartezeit has not elapsed). However, the AGG anti-discrimination protections apply from day one, so dismissals during probation must not be based on protected characteristics.
- Maximum Probezeit: 6 months (§622(3) BGB)
- 2-week notice period during Probezeit — either party
- No KSchG protection during Probezeit (Wartezeit not yet completed)
- AGG anti-discrimination rules apply from day 1 of employment
- Probezeit must be explicitly agreed in writing — it is not automatic
Part-Time Rights — TzBfG §8
Employees with more than six months' service are entitled to request a reduction in working hours under §8 TzBfG. The employer must employ more than 15 full-time equivalent employees for the right to apply. The request must be submitted in writing at least three months before the desired start date. The employer may refuse only if there are compelling operational reasons (betriebliche Gründe). Refusal on other grounds entitles the employee to reduce hours unilaterally. A right to return to full-time hours (Aufstockungsrecht) exists under §9 TzBfG.
- Part-time request right: §8 TzBfG, after 6 months' service
- Employer threshold: >15 FTE — below this, §8 does not apply
- Written request required ≥3 months in advance
- Employer can refuse only for compelling operational reasons (betriebliche Gründe)
- Right to return to full-time: §9 TzBfG — employer must prioritise applicant for full-time vacancies
Tarifvertrag — Collective Agreements
A Tarifvertrag (collective agreement) is a binding written agreement on employment terms negotiated between a trade union (Gewerkschaft) and an employer or employer association under the Tarifvertragsgesetz (TVG). Provisions of a Tarifvertrag take precedence over individual employment contracts to the extent they are more favourable to the employee (Günstigkeitsprinzip). A Tarifvertrag may be declared allgemeinverbindlich (generally binding) by the Federal Ministry of Labour under §5 TVG, at which point it applies to all employers and employees in the sector regardless of union membership.
- Tarifvertrag: binding collective agreement between union and employer/association (§§1–6 TVG)
- Günstigkeitsprinzip: individual contract cannot deviate below Tarifvertrag terms
- Allgemeinverbindlicherklärung (§5 TVG): extends Tarifvertrag to entire sector
- AEntG (Arbeitnehmer-Entsendegesetz): applies minimum Tarifvertrag terms to posted workers
- Common sectors with generally binding agreements: construction, cleaning, security, care
Non-Compete Clauses — §§74–75d HGB
Post-contractual non-compete agreements (nachvertragliche Wettbewerbsverbote) are governed by §§74–75d HGB. To be enforceable, the clause must be in writing, signed by the employer, and accompanied by a commitment to pay Karenzentschädigung (compensation during the non-compete period) of at least 50% of the employee's last contractual remuneration. The maximum permitted duration is two years. Without the 50% compensation commitment, the clause is void and the employee is not bound by it. Employers may waive the clause at any time, releasing the compensation obligation with a 30-day delay.
- Valid non-compete requires: written form, employer signature, and Karenzentschädigung commitment
- Karenzentschädigung minimum: 50% of last contractual gross salary per month
- Maximum duration: 2 years post-employment (§74(1) HGB)
- Clause without 50% compensation commitment: void and unenforceable
- Employer may waive clause — compensation obligation ceases after 30 days
IP Assignment — §69b UrhG (Software)
Under §69b of the Urheberrechtsgesetz (UrhG), computer programs created by an employee in the course of their duties or following the employer's instructions are subject to an automatic, exclusive right of exploitation by the employer. This is a statutory assignment that applies even without an explicit clause in the employment contract. For other creative works (text, designs, inventions), the assignment must be expressly agreed and the employee retains the moral right of authorship (Urheberpersönlichkeitsrecht) which cannot be transferred. Employee inventions are separately governed by the Arbeitnehmererfindungsgesetz (ArbEG).
- §69b UrhG: employer automatically receives exclusive exploitation rights to employee-created software
- Applies to software created in the course of duties or on employer instruction — no contract clause needed
- Non-software creative works: assignment must be expressly agreed in contract
- Moral right of authorship (Urheberpersönlichkeitsrecht) is non-transferable for all works
- Employee inventions: separate ArbEG rules — employer must claim invention within 4 months
Leiharbeit — Temporary Agency Work and Equal Pay
Temporary agency work (Leiharbeit) is governed by the AÜG. After 9 months at the same user company, agency workers are entitled to equal pay and equal treatment under §8 AÜG. The maximum assignment duration at one user company is 18 months; beyond this, a direct employment relationship with the user company is deemed to arise by statute. Sector Tarifverträge may deviate from equal pay during the first 9 months, but the 18-month cap on assignment length cannot be derogated by collective agreement.
- Equal pay right after 9 months' continuous assignment at same user company (§8 AÜG)
- Sector Tarifvertrag may defer equal pay but not beyond 15 months
- Maximum assignment: 18 months — exceeded assignments trigger statutory direct employment
- Agency must hold Arbeitnehmerüberlassungserlaubnis (licence) from Bundesagentur für Arbeit
- Leiharbeitnehmer count toward user-company thresholds for BetrVG and KSchG
Key Contract Clauses and Pitfalls
German employment contracts regularly include clauses on working hours (referencing ArbZG), place of work (Arbeitsort), Verschwiegenheitspflicht (confidentiality), Nebentätigkeit (secondary employment restrictions), and forfeiture clauses (Verfallsklauseln). Forfeiture clauses must provide a minimum two-month claim period or they are void (§307 BGB — general terms and conditions control). Unilateral change clauses (Direktionsrecht under §106 GewO) allow employers to adjust duties and place of work within reasonable limits, but cannot reduce core contractual terms. All contract terms must comply with the NachwG §2 minimum disclosure requirements.
- Forfeiture clauses (Verfallsklauseln): minimum 2-month claim window or void (§307 BGB)
- Direktionsrecht (§106 GewO): employer may adjust duties/location within reasonable bounds
- Secondary employment restrictions must be objectively justified — blanket bans are void
- Confidentiality clause survives contract end; trade secret protection also under GeschGehG
- All 12 NachwG §2 fields must appear in the written employment statement from day 1
Frequently Asked Questions
What must a German employment contract include from day one under NachwG 2022?
Under the 2022 NachwG reform, employers must provide written confirmation of 12 employment terms on or before the employee's first day of work. Key required fields include: start date, job title and duties, place of work, remuneration, working hours, leave entitlement, notice periods, probation period, and applicable collective agreements. Failure to provide the statement on time carries fines up to €2,000.
What is the maximum duration of a fixed-term contract without reason in Germany?
Under §14(2) TzBfG, a fixed-term contract without an objective reason (sachgrundlose Befristung) may not exceed two years in total and may be renewed a maximum of three times within that two-year period. After expiry of the two-year cap or the third renewal, the contract is automatically converted to an open-ended employment relationship.
What notice period applies during the Probezeit in Germany?
During the agreed Probezeit (maximum 6 months under §622(3) BGB), either party may terminate the contract with just two weeks' notice, without providing reasons. After the Probezeit, the standard statutory notice period of 4 weeks to the 15th or month-end applies, increasing with seniority.
Can an employee in Germany request reduced working hours?
Yes. Under §8 TzBfG, employees with more than 6 months' service may request a permanent reduction in working hours if the employer has more than 15 FTE employees. The request must be made in writing at least 3 months before the desired start date. The employer may refuse only for compelling operational reasons.
What is a Tarifvertrag and does it apply automatically?
A Tarifvertrag is a collective agreement between a trade union and an employer or employer association. It applies automatically to employers who are members of the contracting employer association and employees who are union members. It can also apply to all workers in a sector if declared allgemeinverbindlich under §5 TVG. Individual contracts cannot provide less favourable terms than the applicable Tarifvertrag (Günstigkeitsprinzip).
How is a non-compete clause made enforceable in Germany?
A post-employment non-compete clause under §§74–75d HGB is enforceable only if it is in writing, signed by the employer, and commits the employer to pay Karenzentschädigung of at least 50% of the employee's last gross monthly salary for the duration of the restriction. The maximum enforceable duration is 2 years. Without the 50% compensation commitment, the clause is void.
Does an employer automatically own software written by an employee in Germany?
Yes. Under §69b UrhG, an employer automatically receives the exclusive right to exploit computer programs created by employees in the course of their duties or following the employer's instructions. No specific contract clause is required. For non-software creative works, the assignment must be expressly agreed.
What is Kettenbefristung and is it legal in Germany?
Kettenbefristung refers to a chain of successive fixed-term contracts with the same employer, used to avoid granting permanent employment. German courts treat it as an abuse of the fixed-term rules under TzBfG. Courts examine whether repeated fixed-term contracts were used to avoid the Kündigungsschutz rather than for genuine operational reasons, and may declare the final contract open-ended if abuse is found.
When does an agency worker become entitled to equal pay in Germany?
Agency workers (Leiharbeitnehmer) are entitled to equal pay and equal treatment compared to the user-company's comparable permanent employees after 9 continuous months at the same user company (§8 AÜG). A sector Tarifvertrag may lawfully defer equal pay treatment during the first 9 months.
What is the maximum assignment duration for agency workers in Germany?
Under the AÜG, the maximum assignment of the same agency worker to the same user company is 18 months. If the assignment exceeds 18 months, a direct employment relationship between the worker and the user company is deemed to have arisen by statute, with the user company becoming the de facto employer.
Is verbal employment agreement valid in Germany?
A verbal employment contract is generally valid in German law, but fixed-term contracts must be in writing before work commences (§14(4) TzBfG) — a verbal fixed-term agreement is void and the contract is treated as open-ended. Additionally, the NachwG requires the employer to provide a written statement of terms by day one even if the contract itself was concluded verbally.
What is the Direktionsrecht of a German employer?
The Direktionsrecht (§106 GewO) is the employer's right to issue binding instructions on the manner, place, and time of work performance within the limits set by the employment contract, applicable law, and collective agreements. The employer may reassign tasks or change workplace location if these actions are reasonable and within the contractual scope — but cannot unilaterally reduce salary or fundamentally alter core duties.
What happens if a forfeiture clause in a German employment contract sets a one-month deadline?
A forfeiture clause (Verfallsklausel) that sets a deadline shorter than two months is void under §307 BGB (control of general terms and conditions). A void forfeiture clause is simply disregarded — it does not make the entire contract void. The statutory limitation period under BGB §195 (3 years) then applies instead.
How does the AEntG affect posted workers in Germany?
The Arbeitnehmer-Entsendegesetz (AEntG) requires employers posting workers to Germany to apply the mandatory working conditions under any allgemeinverbindlich Tarifvertrag in the relevant sector. This includes minimum wages, working hours, and leave entitlements. The AEntG applies regardless of where the employer is incorporated and is enforced by the Zollverwaltung.
Does prior employment with the same employer block a new fixed-term contract?
Yes. Under §14(2) TzBfG, a sachgrundlose Befristung (fixed-term without objective reason) is prohibited if the employee has previously been employed by the same employer in any capacity within the preceding three years. An earlier employment relationship — even a brief one — bars a new fixed-term contract without a valid objective reason.
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