New Evidence Act for Transparent Working Conditions: What Employers Need to Know Now

1. Introduction and Legal Background

With the Act to Implement the EU Directive 2019/1152 on transparent and predictable working conditions, the German Evidence Act (NachwG) has been fundamentally reformed. The aim is to provide employees with more comprehensive information about the essential conditions of their employment relationship.

The law came into effect on August 1, 2022 and generally applies to all employment contracts concluded from this date.

Important! Risk of Fines:

Violations of the evidence obligations can be penalized as an administrative offense with a fine of up to €2,000 per violation. The Evidence Act is thus significantly stricter than before.

2. Evidence Obligations Applicable Until July 2022

Until July 2022, the Evidence Act largely played a shadowy role in operational practice. The following points only had to be included:

Designation and address of the contracting parties
Start of the employment relationship
In case of fixed-term: foreseeable duration of the employment relationship
Place of work and working hours
Brief description of the activity
Composition and amount of remuneration including bonuses, allowances, premiums, and special payments
Duration of vacation
Notice period

If an employer violated these obligations, the employee could only claim fulfillment or – in the case of proven damage – compensation. Fines were not threatened.

3. Expansion of Evidence Obligations

The reforms significantly affect both the scope and the content of the evidence obligations.

Expanded Scope

The previous exception for temporary workers employed for a maximum of one month is eliminated. The Evidence Act now applies to all employees – including external managing directors and civil servants.

Note:

The requirements for evidence regarding apprentices have also been tightened. The basis for this is the Vocational Training Act.

New Working Conditions to be Included

In addition to the previously required information, the following contractual conditions must now be included in the written record:

The end date for fixed-term employment relationships (as an alternative to the foreseeable duration)
The possibility of choosing a free place of work (e.g., mobile working/home office), if agreed
The duration of an agreed probationary period
The overtime pay and the conditions for its imposition
Due date and form of payment of remuneration
Agreed rest breaks and rest periods; in shift work: shift system, shift rhythm, and conditions for shift changes
Details of on-call work, if agreed
Any claims to training provided by the employer
Name and address of the provider of occupational pension schemes, if promised
Reference to applicable collective agreements, works agreements, and possibly church regulations

Extended Notice on Termination Procedure

Since August 1, 2022, the written record must additionally include the following information along with the notice period:

Reference to the requirement of written form for termination (§ 623 BGB)
Indication of statutory, collective, or individual contractual notice periods
Reference to the three-week period for filing a wrongful dismissal lawsuit (§ 4 KSchG)

Notification for Overseas Employment

For overseas assignments of more than four consecutive weeks, the information obligations have been significantly expanded. The employer must now additionally record in writing:

The country or countries where the activity is performed
The planned duration of the overseas stay
Any monetary or in-kind benefits (e.g., expatriation allowances, travel and accommodation costs)
The indication of whether a return is planned, and if applicable, the conditions of the return

4. New, Shortened Deadlines

The previous uniform one-month deadline for drafting the essential working conditions has been replaced by a staggered system:

No later than the first working day

Name and address of the contracting parties, composition and amount of remuneration, agreed working hours

No later than after 7 days

Start of the employment relationship, probationary period, duration of a fixed-term, place of work, job description, regulations on overtime

No later than after 1 month

All other working conditions (e.g., vacation, termination, pension, training)

Recommendation:

For process simplification, it is advisable to incorporate all information required by the Evidence Act into the written employment contract and to have it signed by both parties in handwriting before the start of work.

Also, changes to essential contractual conditions during the ongoing employment relationship must be communicated to the employee no later than the day they become effective – no longer just one month later.

5. Existing Contracts

Employment contracts concluded before August 1, 2022, do not need to be adjusted on their own.

However, if an employee requests a new version or if contractual changes are to be made, the following deadlines apply:

Within seven days of the request: submission of the particularly important working conditions in written form
Within one month: submission and delivery of the complete written record

Action Recommendation:

Even without acute pressure to adapt, employers should have a template for existing contracts that meets the new requirements – because when an employee requests it, the seven-day deadline starts from receipt of the request.

6. Changes in Other Laws

Temporary Employment Act (AÜG)

Temporary workers must now receive the company and address of the hirer in text form before each assignment. Furthermore, the hirer is obliged to provide temporary workers with at least six months of assignment, upon their request for an employment contract, a reasoned response in text form within one month.

Part-Time and Fixed-Term Employment Act (TzBfG)

Three important changes must be noted here:

A probationary period in fixed-term employment relationships must now be in a reasonable proportion to the duration of the fixed-term and the nature of the activity – a blanket probationary period of six months may be inadmissible for short fixed terms.
Fixed-term employees who have been employed for more than six months can express the desire for a permanent employment relationship; the employer must respond with a reasoned answer within one month.
In on-call work, a time frame determined by reference hours and reference days must now be set; if this is missing, the employee can refuse to perform the work.

Trade Regulation Act (GewO)

Employers are now prohibited from imposing the costs of legally, collectively, or by works agreement prescribed training on employees. These trainings should generally take place during working hours; if this is not possible, they are considered working time.

7. Action Required for Employers – A Checklist

The following specific actions are required for employers due to the changes:

Immediately review and adjust existing contract templates to the new requirements of the NachwG
Ensure that all newly required working conditions are included in the contract templates
Where possible, refer to relevant collective agreements, works/service agreements, and legal regulations
Observe the shortest deadline: delivery of the most important working conditions no later than the first working day
Keep an up-to-date template for existing contracts to meet the seven-day deadline in case of employee inquiries
Ensure that changes to essential contractual conditions are communicated to the employee in writing no later than the day they become effective
Ensure that evidence is only provided in written form (original signature on paper) – digital signatures or scans are not sufficient
Review fixed-term regulations and probationary periods in the TzBfG for proportionality
Review training cost regulations in light of the new Trade Regulation Act provisions

Note on Written Form:

The essential working conditions must be recorded on paper, signed by hand, and handed to the employee in the original. Transmission as a copy, scan, or with a digital signature is not legally sufficient.