Till, hardly anyone likes being in a courtroom. Why should employees take that step anyway?
Till Bender: I often hear people say, “I’ve never had anything to do with the courts before!” Some people are downright ashamed of it. But one thing is certain: If you’re entitled to something and you can’t get anywhere through the works council, then you shouldn’t be afraid of labor court. After all, it’s about enforcing legitimate claims. Most judges create a friendly atmosphere in the courtroom and let employees have their say. Looking back, people are usually satisfied.
Do employers have the upper hand in court?
No. It can even be the other way around: Some employers have a reputation that precedes them. If a company is constantly failing to pay wages, the judge might think, “Not that one again.” Such employers have a weak case in court.
Are there typical employer tricks?
Let’s put it this way: Some employers interpret the laws very creatively. They try to push the limits of what’s allowed—or go beyond them. Of course, this is always to the detriment of the employees. Another common practice is for employers to simply withhold parts of the wages, sometimes using flimsy excuses. Employees are always at a disadvantage in these situations: They have to chase after their money.
Are these your most common cases?
Disputes over pay account for about half of all cases: either the collectively bargained wage isn’t paid, or no wages are paid at all. About a third of the cases involve terminations. There are also regular disputes over employment references and the wording used in them.
How many of your cases do you win?
Proceedings before the labor court are often settled through a compromise rather than a judgment. This often makes sense because it allows plaintiffs to receive their money more quickly. In unfair dismissal cases, the court only decides whether a termination is valid or not; the employee only receives severance pay as part of a settlement. In this way, in 2016 alone, we secured approximately 90 million euros for IG Metall members in labor court proceedings. We usually win disputes over collectively bargained wages—after all, there’s a legal entitlement to them, in black and white. Things often get complicated when it comes to unpaid overtime.
Why?
It’s not enough for employees to simply keep track of the overtime they’ve worked. They should definitely do that anyway. But they also have to prove that the employer ordered the overtime. Ideally, they should get written confirmation every single time. But that’s unrealistic.
What can you do about this?
Some courts ease the burden of proof for us. In such cases, for example, it’s enough to prove that you were present at work during certain times. But even that’s difficult if the company doesn’t have working time accounts. That’s why we often work toward a settlement: then at least one-third or half of the overtime worked is paid retroactively.
Some employment contracts state: “Overtime is compensated on a lump-sum basis as part of the agreed-upon compensation.”
Such clauses are illegal for regular employees. There are many similar clauses here that are often invalid as well. If necessary, you should have this reviewed.
How do you handle a case?
I receive a case file—for example, from an IG Metall office, where cases are reviewed first. If necessary, I then speak with the individuals involved. After that, I file a lawsuit with the labor court.
And then?
First, there’s a conciliation hearing, which is mandatory under labor law. During the conciliation hearing, the parties explore whether they can reach an agreement without going to trial. The plaintiff usually doesn’t have to appear in person at this hearing. The employer also usually sends only their legal representatives. If an agreement can’t be reached, the case proceeds to a chamber hearing. There are three judges on the panel: the presiding judge and two lay judges, one representing the employee and one representing the employer. Each has one vote.
How do you proceed in court?
Example: Termination for operational reasons. In termination lawsuits, the burden of proof lies with the employer. So I first challenge the validity of the termination. The employer must then justify why the termination was lawful. That’s a high hurdle. We can, of course, challenge the employer’s justification as well. Our good relationships with the works councils often help us obtain information in this process.
Which case stands out most in your memory?
A particularly brazen one: A metal and electrical company had hired apprentices, but not directly through the company itself—rather, through a supposedly charitable training association. The apprentices worked at the company just like regular employees, but received only half the collectively bargained wage. The case went all the way to the Federal Labor Court. The employer lost. They had to pay back the wage difference for the entire duration of the apprenticeship, plus interest.
About the person: Till Bender has been working at DGB Rechtsschutz GmbH since 2012. The labor lawyer represents union members in court.
