As a lawyer, I keep myself up to date and regularly read new publications in the specialist literature.
Is a review of a textbook on contract drafting useful for employees? Is it even worthwhile to get a textbook or, if necessary, to study it in a library?
Many employees first look for a solution to their current problems on the Internet. Some of the sources on the Internet are reliable, but most of them are less trustworthy. At the end of the “self-research”, the employee remains uncertain whether what he has read also applies under labor law.
An up-to-date textbook can provide secure and reliable answers. In my experience, many employees want to first check “on their own” – sometimes very committed – whether certain clauses in their employment contracts (on the topics of vacation entitlement, contractual penalty, notice period, short-time work, remuneration, company car, surcharges, overtime, overtime, working hours etc.) are really effective or not. For this reason, a review of a specialist book that a committed layperson can also refer to makes perfect sense.
I have offered the following review to the NZA (Neue Zeitschrift für Arbeitsrecht) and the ArbR (Arbeitsrecht Aktuell) for publication. She was not accepted.
The review:
Contract drafting in labor law
Dr. Péter Csingár, Rechtsanwalt
Contract drafting in labor law.
Employment and employment contracts. Edited by Frank Maschmann, Rainer Sieg, Burkard Göpfert, 3rd edition. Munich, CH Beck Verlag 2020. S. 1680., geb. 159 euros. ISBN: 978-3-406-74157-9.
Since the reviewer had very good experiences with the 2nd edition of the book in his everyday work practice, the anticipation for the announced new edition was correspondingly great. The tried and tested structure of the work was essentially retained, the newly designed tables of contents ensure a better overview. After an introduction to the basics of contract drafting, after reading dozens of contract templates, the reader arrives at the core of the book, the explanations of individual subject areas from “A” to “Z” (from “prohibition of assignment” to “rights of retention”) with the corresponding suggestions for contract design .
In view of the labor law challenges of the corona pandemic, interest in current and legally secure contract design options is particularly high. A total of 18 new chapters have been added. The current issues of “home office / teleworking at home” and “short-time working” were already considered in the previous edition with a separate chapter.
Due to the pressure to act to introduce short-time work due to the “lockdown” in March 2020, incorrect contract drafting (where there was any explicit contract drafting activity at all) occurred with the result that numerous home office and short-time work clauses were illegal. The fact that these ineffective regulations have not (yet) triggered any noticeable waves of lawsuits may be due to the fact that most employees have welcomed the home office themselves. In view of the confusing risks of the pandemic, the affected workforce was initially happy, according to the reviewer’s practical experience, that they could keep their work with short-time working. However, that has changed in the meantime. The longer the infection process lasts, the more urgent it is to find legally secure regulations on short-time work and home office, because employees are increasingly asking themselves: Do I have to work from home (and if so, under what conditions), and do I have to do this every month if necessary. accept fluctuating remuneration?
The book keeps what it promises in the foreword: it takes into account the current status of legislation and case law up to the end of March / April 2020. In the new edition, the “Short-time work” chapter has been significantly expanded. Although nothing has changed in the case with regard to short-time work (the decisions of the LAG Bln-BbG from 2010 and 2011 cited in the book are still essential), the proposed clauses in the chapter are well thought out, legally secure and with great profit to use. The proposed clauses also show how many (very many) ineffective short-time working agreements are currently still in circulation.
In addition to the employment contract regulation options, company agreements and models of the employment agencies are presented. Both are of enormous importance; the practitioner can read from the patterns of the employment agency which standards the employment agency applies when examining the labor law Effectiveness of a short-time working clause. A decisive factor for the lawyer’s tactical approach.
The chapter “Home office / domestic telework” has also been expanded in the new edition. In this chapter, the legal clarification (as in the previous edition) that the employer may not order a home office against the will of the employee is gratifying. The proposed clause takes into account all relevant and legally neuralgic points (the employer’s right of access to the apartment, working hours, work equipment, etc.).
The 18 new chapters (including on “Retirement Agreement”, “Sabbatical”, “Crowdwork”, “Time Instead of Money”, “Consent to the Data Agreement”) enrich the new edition and reflect the focus of creative development since the old edition. The chapter on “Criminal Law Protection”, which deals with special regulatory material, should be emphasized here, as well as the extremely important “Company integration management” against the background of illness-related absences of employees and personal dismissal.
The errors in the book should not be concealed. The sample contracts for employment contracts in the second part of the book (B. Sample contracts) consistently contain particularly serious errors in the exclusion clauses. All employment contract models with an exclusion clause (the reviewer counted 6 pieces) contain the wording that the “claims with the other party written valid ”. Since October 1st, 2016 according to § 309 No. 13 lit, b) BGB exclusion clauses no stricter form than that Text form may contain, all exclusion clauses in the employment contracts of the contract models are ineffective. A more than just annoying mistake on the part of (and his client) who adopts the pattern on the assumption that they are legally secure. To describe this with an example from the football jargon of the Champions League: this must not happen at this level. Especially since the explanations and proposed clauses on the exclusion periods (p. 560 f.) Are correct and correspond to the current legal situation.
For this reason, the book can only be recommended to a limited extent.
Dr. Péter Csingár, Rechtsanwalt
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