salary
March 3, 2011 | 40,00 EUR | answered by Jan Wilking
On 01.02.2011, I started a new job at Caritas as a qualified social worker. On 28.02.2011, I did not receive my salary. I was informed that the employee in the personnel department was on extended sick leave, which is why my data was not processed as no replacement was assigned. I was offered an advance payment.
What are the legal implications of this situation? Do I have to wait until the end of March to receive my salary?
Dear inquirer,
I am happy to answer your inquiry taking into account the facts you have provided and your commitment as follows:
The due date for wages is generally governed by § 614 of the German Civil Code (BGB). According to this provision, compensation is to be paid after the performance of services. If the compensation is determined by time periods, it is to be paid after the expiration of each time period. According to this legal regulation, employees are required to perform first: work must be done first, then the employer must pay the wages.
Therefore, if, for example, a monthly salary is agreed upon in the employment contract, i.e. if the compensation is determined by time periods or months, the employer must pay on the first day of the following month after the end of each month. According to the law, the monthly salary is due on this day. However, deviations from § 614 BGB regarding the due date of the compensation may be included in an employment contract or in a collective bargaining agreement applicable to the employment relationship. Therefore, check your employment contract or a collective bargaining agreement applicable to your employment to see by which day of the month the compensation must be paid. Once this day has passed, you have a right to your salary, so you don't have to wait until the next month. In most cases, you have the following options if the employer does not pay as agreed:
From the moment the employer is in default with the payment of wages, you are entitled to interest on arrears. Since the performance of the employer, i.e. the payment of wages, is usually fixed for a date according to the calendar, the employer automatically falls into default if he lets the "calendar-determined" due date for the payment of wages pass, according to § 286 BGB. If there is no provision in the employment contract or in a collective bargaining agreement applicable to the employment relationship deviating from § 614 BGB regarding the due date of the compensation, the employer is therefore in default with the payment of wages on the second calendar day of the following month.
If the amount of interest is not exceptionally regulated in the employment contract or in a collective bargaining agreement applicable to the employment relationship, it is determined by law. According to § 288 BGB, during the default, default interest at a rate of five percentage points above the base rate per year can be claimed. According to the case law of the Federal Labor Court (BAG), you can calculate the default interest due from your gross salary.
You also have a right to retain your work performance according to § 273 para. 1 BGB if the employer does not fulfill his obligation to pay wages. However, the right to retain work performance must be exercised in accordance with § 242 BGB, taking into account the principles of good faith and fair dealing. This means that work performance may not be withheld due to a relatively minor wage claim or only a short-term delay in payment of wages. The right to retain work performance must also not be exercised at an inappropriate time to avoid causing the employer disproportionately high damage.
Finally, please note that a statute of limitations for asserting claims arising from the employment relationship can be agreed upon in the employment contract. Section 23 (1) of the Guidelines for Employment Contracts in the Institutions of the German Caritas Association (AVR) states:
Claims arising from the employment relationship expire if they are not asserted in writing by the employee or the employer within a statute of limitations of six months after the due date, unless the AVR provides otherwise.
I hope to have provided you with a helpful initial orientation. If you have any further questions, please use the free inquiry function.
Please note that I cannot provide a conclusive recommendation without knowing all the circumstances as part of an initial consultation. If you require a final assessment of the situation, I recommend contacting a lawyer and discussing the situation with them after reviewing all documents.
Best regards
