Rules for remuneration statement and remuneration certificate
The employment contract defines the remuneration that employees receive from their employer for the work they have performed. Collective agreements and suchlike often supplement employment contracts provisions.
At the same time, Section 108 of the (Trade, Commerce and Industry Regulation Act GewO) and the Remuneration Certification Regulation (EBV) require employers to provide employees with a precise statement of their pay at the end of the month in text form.
Yet what exactly satisfies the legal requirement for the text form?
While purely verbal means are inadequate, the written form on paper is also no longer absolutely necessary. “Digital” is sufficient. In principle.
Especially in the case of digital documents, what matters is that as soon as the employee has received the remuneration statement, employers are no longer to make any subsequent changes – whether to their advantage nor disadvantage.
The regulation is clearly intended to enable employees to understand in detail what they are being paid for and how much. In future, it will also provide transparency regarding all of the parties involved.
Is access via a cloud-based online employee portal sufficient?
Given that digital remuneration statements can fulfill the text form requirement, is it also possible to provide employees with their personal remuneration statements via a cloud-based employee portal? Various HR tools enable employees to manage vacation requests, etc. and also offer remuneration statement solutions.
The problem lies in the fact that while employers can easily use these portals for vacation requests and suchlike from employees, can they provide employees with legally binding information simply via access to the portal? This is a difficult situation and raises issues such as when is a declaration such as the remuneration statement received in the legal sense of Section 130 of the German Civil Code (BGB)?
Consent required for provision via online portal?
A case before the State Labor Court of Lower Saxony addresses precisely this question: Is it generally possible for remuneration statements to be delivered to employees if they are uploaded to a personalized online employee portal and are available for access? Does this fulfill the remuneration statement requirement?
In line with the case law of the State Labor Court of Hamm from 2021, the State Labor Court of Lower Saxony ruled that it does not. Employers can only effectively deliver the remuneration statement via online portals if the employee has expressly consented to the remuneration statement being delivered in this form. Moreover, this also means that employers are responsible for ensuring that the consent is also verifiable.
Furthermore, the court explicitly stated that a company agreement defining delivery of the remuneration statement via such a portal as lawful cannot replace individual consent. According to the Federal Court of Justice, remuneration statement is fundamentally not subject to co-determination.
Appeal before the Federal Labor Court
The ruling by the State Labor Court of Lower Saxony was not yet legally binding at the time of publication of this article, as an appeal has been submitted to the Federal Labor Court (BAG) and the decision is still pending. Therefore, it remains to be seen whether the Federal Labor Court will decide for or against simplifying remuneration statements in digital times or whether the paper form can remain mandatory.
What can we do for you?
Do you have questions about digital remuneration statements and options which fulfill both the text form requirement and also data protection law? Do not hesitate to contact us!
Summary of the key facts:
- Providing employees with a remuneration statement is a legal obligation for employers.
- The text form is prescribed for remuneration statements, making the digital form fundamentally possible.
- The “delivery” of remuneration statements via online employee portals using password-protected, individual access is only possible if the respective employee has agreed to this form of delivery.
