Garden leave

In labor law, the exemption refers to the one-sided arrangement of the employer or a consensual agreement between the parties to the employment contract to release an employee from the obligation to provide his labor power permanently or temporarily.

Un-/Entgeltlichkeit

An exemption may be agreed as paid or unpaid leave

  • If the exemption is provided at the request of the employee without the employee is legally entitled, it is usually unpaid.
  • If the employer provides the employee freely on its own, this is usually done with continued payment of remuneration. The employee need that is not going to work, but retains its right to remuneration during the exemption period.

Revocability

An exemption can be revocable or irrevocable decision.

  • When revocable exemption, the employer may at any time require the worker to return to work.
  • In the irrevocable exemption of workers is no longer recalled during the release phase to work.

Exemption and holidays

The employer grants leave because he exempts the employee from the obligation to work. In waivers for other reasons, is why the question often arises as to whether this is a stand-alone exemption or only to an exemption for the fulfillment of leave entitlement, ie whether the exemption will be credited to the ( recreation ) leave.

  • The exemption attributed to the holidays as far as the still existing holiday entitlement goes under. The leave entitlement applies to the exemption to be settled. However, the employer must make it clear to the employee that he will grant leave with the exemption.
  • If no deduction is given, the employee shall retain his right to leave and also acquires in the exemption phase further holiday entitlement. When revocable exemption, the credit is generally inadmissible because the sense of relaxation holiday would be frustrated because the employee has at any time expect to be brought back to work and so do not go away or is making alternative plans. When this argument is omitted irrevocable exemption so that they can be explained by widespread legal opinion taking into account the leave entitlement.

Recognition of interim earnings

Finally, an exemption can be with or without crediting an interim earnings, ie earnings from the alternative activities, are explained.

  • As long as an employment relationship, the employee must meet only limited or only with the consent of the employer a further contract of employment, see also a side job. The exemption does not change this. The employer may allow the employee but an outside activity during the exemption. If this is done without accounting for interim earnings, the employee receives almost two salaries.
  • However, the Zwischenverdienst To be counted, the employee only the difference between the salary of the new job and the salary of the exempt employment received from the Indemnifying employer.
  • Should an employer to the imputation of any interim earnings, the employee for the remaining term of his employment contract to the inherent labor -competition clause must hold. In return, may be worked during the release phase to competing companies, if the employer's recognition of Zwischenverdienst not contractually exclude or even agreed.

Social Security Law

Arrange the working parties an irrevocable exemption, the pensionable employment in the defined contributions and legal sense not already ends with the beginning of time off work. The employee is rather continue to workers in terms of a social insurance employment and - contrary to earlier opinion - according to recent case law of the Federal Social Court (24 September 2008) will continue until the termination duty member of the pension, health, care and unemployment insurance. Advantage and the most common cause of such an agreement, is that ascertained by the Federal Employment Agency, any waiting time for the receipt of unemployment benefits under § 144 SGB III (Third Book of the Social Code), starts with the beginning of the exemption and, with proper contract design to coincide with the later end of the employment contract expires, so that the workers can claim unemployment benefits without interruption.

Exemption reasons

The reasons for exemptions are different.

On the employer side, the exemption is commonly associated with the termination of employment ( dismissal), in particular with the behavioral and personal -related termination. Even with the dismissal for operational reasons can be an exemption from the employer, if the employer timely notice pronounce, but on the further work during the notice period is no longer interested. This is often in connection with a bankruptcy case.

On the employee side, there are many projects for which the leave entitlement is not sufficient, for example, world travel, long training, child care, etc.

Under certain circumstances, employees are entitled to paid or unpaid leave. In Germany, claims for exemption particular reasons ( not exhaustive ):

  • In the Works Constitution Act ( WCA): for the activities of the works council ( § 37 WCA) as well as for business meetings ( § 44 WCA) as well as the youth and trainee representatives ( § 65 WCA) and the youth and trainee Assembly ( § 71 WCA);
  • In youth employment component (s ) for under - 18 year old (§ 1 of the Hazardous Substance ): for participating in the vocational school ( § 9 of the Hazardous Substance ), for audits and external training ( § 10 of the Hazardous Substance );
  • In the Vocational Training Act ( Vocational Training Act): paid time off to participate in the professional education and examinations, as well as no fault of prevention (§ 15 and § 19 of the Vocational Training Act );
  • In the Staff Committee laws;
  • In the workplace Protection Act ( ArbPlSchG ): ( § 1, § 10 and § 14 ArbPlSchG );
  • The Social Code ( SGB): under certain circumstances, for the supervision, care or care of a sick child ( § 45 SGB V, see children sick pay ), for SHE representative ( § 95 SGB IX) and confidants of severely disabled persons ( § 96 SGB IX);
  • The Maternity Protection Act ( Maternity Protection ): paid leave for studies in pregnancy and motherhood ( Maternity Protection § 16 );
  • In the Federal Parental Benefit and Parental Leave Act ( BEEG ): for parent and grandparent time;
  • In Care Leave Act ( PflegeZG ): for short-term absence from work (§ 2 PflegeZG ) and for the care (§ 3 and (§ 4 PflegeZG );
  • In the Civil Code (BGB ): paid leave for temporary prevention by a reason in their own person basis without any fault ( § 616 BGB, especially when a doctor's visit at the relevant time is medically necessary, ie at about acute problems, or if the doctor offers no date outside working hours, or in certain cases in which parents have short exercise supervisory obligation), in prospect of another service upon termination ( § 629 German Civil Code); However, deviations can be agreed both in favor and expense workers in collective agreements, operating agreements or contracts;
  • In national laws ( eg fire law, Civil Protection Act).

Further claims for exemption may be specified in individual contracts of employment in collective agreements, operating agreements or service agreements ( in the public sector ) as well.

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