The most common sources of danger for conductive

Employees and managers

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The most common sources of danger for executives and managers in employment law

Law firm for labor law in Kerpen, Cologne and Witten

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Senior managers and executives are employees with a wide range of responsibilities within the scope of their work, their employment relationship. They are subject to a wide variety of tasks, which generally require a certain level of personal competence. Due to their broad and special powers, they therefore occupy a special position within the company.

This has also been explicitly recognized by the legislator through special legal regulations, but essentially not to the advantage of executives, rather the opposite. It is often disregarded that the transfer of the position within the company to the executive employee, manager, is also associated with the loss of protection under labor law. For this reason, it is therefore essential to be aware of these specific regulations, so that you can effectively prepare in advance against the employer's actions and, above all, always be aware of your rights, claims and obligations under the employment relationship.

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The concept of manager, executive and their differentiation


Managers are distinguished by the fact that they are the direct interface between the employer and other employees. From a legal point of view, they are on the side of the employees, but in some cases they assume the functions of the employer. However, not every manager is the same as an executive employee.

Senior employees

Managerial employees tend to be employees who assume entrepreneurial tasks within their area of responsibility with a relatively large degree of decision-making freedom. This includes, for example, heads of larger personnel departments or plant managers. Legally, there are sometimes no generally valid definitions for executive employees. Mainly, different laws set different requirements in each case. Accordingly, a manager can, for example, also be a senior employee in the sense of protection against dismissal under Section 14 (2) of the German Unfair Dismissal Act (KSchG) or also in the in the sense of works constitution law to § 5 para. 3 BetrVG be

Limited protection of executives

Limitation of the protection of managers

In principle, an executive employee has the same rights with regard to protection against dismissal as any other employee. The filing of an action for protection against dismissal is therefore also possible for the executive employee. However, some special features apply in such a case. First of all, due to the special position of a senior employee, the employer can more easily issue a termination for behavioral reasons or even for personal reasons. In this case, an exception is made to the principle that terminations are generally to be issued as a last resort.

But even if, in the course of the proceedings, the ineffectiveness of a Cancellation is established, the employer may nevertheless file a petition for dissolution with respect thereto. Such a petition results in the direct termination of the employment relationship by a judgment of the competent labor court against payment of a severance payment.

Basically, the employer can thus buy itself off from the executive employee without justification, but by the mere payment of a severance package. Thus, they can likewise not appeal to the works council against the termination, since they are not represented by the works council.

Furthermore, executive employees are also excluded from the protective regulations of the Working Hours Act, as they are also obliged to assume entrepreneurial, employer tasks. The Working Hours Act stipulates that employees may not be employed for more than eight hours per working day for reasons of social and health protection.

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Legal tips for executives - Avoid these mistakes!

Legal tips for executives

In the best case, an employee in a management position can already ensure his or her comprehensive legal protection at the level of the conclusion of the contract by proactively counteracting the weakening of employee protection for managers undertaken by the legislator.

To achieve this, obtaining effective legal advice is essential in many cases. Transparent provisions and, above all, a fair balance of mutual interests can save costly and time-consuming legal disputes in the event of differences of opinion. In this way, for example, a contractually agreed liability provision can minimize in advance the risk of independent liability for damage that has occurred by limiting liability to gross negligence and willful misconduct and also agreeing on the shortest possible expiry period for liability claims.

However, it is also conceivable that the amount of a possible severance payment in the event of leaving the company is already stipulated in the employment contract.
It is also important to familiarize yourself with the compliance guidelines and rules of conduct. These specify exactly which special rules apply within the company and must be observed. Managers who do not act in a compliance-compliant manner in their daily business operations are in breach of their legal duties of care. Under certain circumstances, this can lead to considerable liability claims as well as criminal prosecution.

Even if you bear a great deal of responsibility for many processes in the company as a senior executive, you should still insist on your own entitlements. Urgent operational needs in particular can mean that executives are unable to take their vacation. In fact, payment of vacation can only be considered upon termination of the employment relationship, insofar as the vacation can no longer be granted. It is particularly important to ensure that any vacation entitlements are not offset against possible compensation payments.

Furthermore, enormous caution is required when agreeing on non-competition clauses. Managers in particular have extensive knowledge of particularly sensitive company information such as sales figures and company secrets due to their close relationship with the employer. In order to adequately protect themselves in the event of the employee leaving for a competitor, non-competition clauses are often agreed, in some cases with six-figure contractual penalty provisions.

However, before signing those clauses, legal advice should be sought urgently. These clauses are subject to strict formal requirements and minimum conditions and can only be agreed for a maximum of two years. In addition, an existing non-competition clause could also stand in the way of further career advancement.

Furthermore, not every measure taken by the employer must simply be accepted. A particularly popular approach among employers is to make the senior employee voluntarily leave the employment relationship by transferring him or her. In principle, however, such a transfer to a less responsible and lower-paid job is not permissible. The transfer must also always be reasonable for the employee. Therefore, it should by no means simply be accepted, but rather its legality should be reviewed in court.

Finally, in the event of a Cancellation In principle, a check must be carried out to determine whether an employee has rightly been classified as a managerial employee. The fact that employees are classified as executives is the absolute exception and can only be assumed under very high requirements. This misjudgment by the employer can then have a very positive effect on the termination that has taken place. Then the employer can no longer so easily separate from the employee through severance pay.

In the event of an extraordinary Cancellation you should remain calm in advance and not jump to conclusions. Discussions with the employer for clarification should be avoided. Otherwise, in the worst case, there is a risk that an invalid reason for termination will be followed by a valid reason. Instead, it is advisable to take legal action against the termination. In the course of the proceedings, a settlement could be negotiated in return for financial compensation and an agreement on a reference.

We are pleased to present our Legal advice available to you if you are faced with the decision to take up a position as a senior executive or if you have already been presented with a concrete contract offer, which you must now legal want to have it reviewed. But we also offer comprehensive consultations in the event of imminent or already issued notice of termination and inform you about further procedures and options.

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+49 (0) 2273 - 40 68 504

Law firm for labor law in Kerpen, Cologne and Witten

Lawyer for - Labor Law | Criminal Law | IT Law | Data Protection