The Significance of the Evidence Act for Employers: A Comprehensive Overview

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) was 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 affects all employment contracts concluded from this date onwards.

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 Valid Until July 2022

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

Designation and address of the contracting parties
Start of the employment relationship
In case of a 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 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 concerning trainees have also been tightened. The basis for this is the Vocational Training Act.

New Employment Conditions to be Included

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

The end date for fixed-term employment relationships (as an alternative to the foreseeable duration)
The possibility of choosing the place of work freely (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 breaks and rest periods; in shift work: shift system, shift rhythm, and conditions for shift changes
Details on work on demand, if agreed
Any claims to employer-provided training
Name and address of the provider of occupational pension schemes, if promised
Reference to applicable collective agreements, company agreements, and possibly church regulations

Extended Notice on Termination Procedure

Since August 1, 2022, the record must include the following information in addition to the notice period:

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

Information 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 work is performed
The planned duration of the overseas stay
Any monetary or in-kind benefits (e.g., expatriation allowances, travel and accommodation costs)
Indication of whether a return is planned, and if so, the conditions of return

4. New, Shortened Deadlines

The previous uniform one-month deadline for drafting the essential working conditions has been replaced by a staggered system:

By the first working day at the latest

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

By the seventh day at the latest

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

By one month at the latest

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

Recommendation:

For the sake of process simplification, it is advisable to anchor all the information required by the Evidence Act in the written employment contract and to have it signed by both parties in handwriting before the commencement 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 take effect – 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 particularly important working conditions in written form
Within one month: submission and delivery of the complete 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 the 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. In addition, 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 reply within one month.
In work on demand, a time frame determined by reference hours and reference days must now be established; 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 statutorily, collectively, or company-agreement-mandated 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 as a result of the changes:

Immediately review and adapt existing contract templates to the new requirements of the NachwG
Ensure that all newly required employment conditions are included in the contract templates
Where possible, refer to relevant collective agreements, company/service agreements, and legal regulations
Observe the shortest deadline: delivery of the most important working conditions by the first working day at the latest
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 take effect
Ensure that evidence is provided exclusively 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.