Can I change employers without changing clients?
8 tips for changing jobs
Tip 1: Don't argue on your mobile phone
LTO: Mr. Fuhlrott, employees get the key to the office, a cell phone, a notebook or even a company car from their employer. What to do with these things when the employee changes jobs?
Prof. Dr. Michael Fuhlrott: These items are owned by the employer; He can therefore request the return - incidentally not only when the employment relationship is terminated, but at any time. When changing jobs, the employee should deliver these items to the employer no later than the day after the legal termination of the employment relationship and have this confirmed.
Dispute could still arise about the return location. Usually this is the company headquarters. Even if the move to Munich has already taken place, the employee must ensure that the things come to the company headquarters, even if it is in Hamburg.
And very important: As a rule, the employee is not allowed to withhold the items even if the salary payments or the certificate are outstanding. A request by the employer to hand over the items should therefore be complied with as much as possible, otherwise there is even the risk that the employer will report the withholding as embezzlement. If you argue about the ordinary termination anyway, the employer then has a good reason to postpone a termination without notice and can easily get away with it.
The situation is somewhat different with a company car, where private use is permitted. This is a component of the remuneration and may not be withdrawn from the employee in the current employment relationship for no reason: Here, the employee is basically entitled to use it up to the day the employment relationship is terminated. If the company car is requested to be returned early, this request should be complied with as a precaution. However, the employee can then assert a claim for damages due to the loss of use if the employer has unjustifiably reclaimed the car.
But - and one shouldn't forget that: Of course, the contracting parties are free to come to an amicable agreement on how things will be used.
Tip 2: look at the company pension scheme
Many companies offer their employees a company pension. Is there anything to be done if you change jobs?
The good thing about the company pension scheme is that a lot is regulated by law and the parties are not allowed to deviate from it. There are relatively few points of contention when the employment relationship is terminated. Nevertheless, one should look at which company pension the employee has: is it employer-financed or employee-financed and when was the pension commitment made?
If the employee finances the company pension at least partially through deferred compensation, he or she is immediately entitled to the transfer of the pension entitlements to an insurer of his choice or he is paid the contributions paid.
If, on the other hand, the company pension scheme is employer-financed, it depends on when the pension commitment was made: If the point in time is between January 1, 2009 and December 31, 2017, the entitlements can no longer expire even if they are terminated without notice after five years of service with the company. If the company pension commitment was granted after January 1, 2018, it will vest after three years. Before these periods, the employer-financed company pension is simply lost, because it is an additional benefit of the employer, which is linked to the company affiliation.
Depending on the amount of entitlements you have acquired, it could make sense to hold out for some time with this employer in order not to lose the entitlements - and when you acquire a new degree with a new employer, consider choosing the employee-co-financed option. This is always a good idea if you want to change jobs again in less than three years.
Incidentally, upon request, the employer has to indicate how high the entitlements are in accordance with Section 4 a of the Company Pension Act. The employee can also make such a request to the insurer in order not to send any signals to their own company.
Tip 3: Saying goodbye to customers
Employees have developed close relationships with customers, especially after long years of service. How can you say goodbye to them when you change jobs?
A farewell to customers is only possible in consultation with the employer, otherwise you have to be very clear: Keep your hands off! Otherwise, the employer could see this as an intrusion into customer contact, which - and it is completely undisputed - is an important reason for termination without notice.
It becomes more difficult when these customer contacts are more of a private nature. Then you come to the question of how the contact came about, was it originally a private or business contact. But even with private contacts, it is better not to notify the resignation via the service email.
Incidentally, a farewell email to colleagues mentioning the new employer is borderline if the new job is with a competitor. The employer would then have the right to see the farewell email before it was sent. If the message to the colleagues even contains the intention of poaching them, there is also a reason for termination without notice. Therefore: Job changer is recommended, without a "go" from the employer better to forego the farewell e-mail.
Even after leaving the company, the switch should not contact customers or clients via social networks. How long you should keep your hands off it is then a question of competition law and also depends on whether knowledge gained at the previous employer may be used in the process. If the contact is made by the customer, this is generally okay if there is no post-contractual non-competition clause. But it is better not to try to cheat.
But these are all the problematic cases - in which the job changer should also be careful. The normal way of dealing with one another is still to write a neutral, nice email to customers and colleagues, present it to the employer before sending it and leave the company in a friendly manner. “You always see each other twice” also applies in the professional world.
Tip 4: Do not clean up your official email account
Everyone with an office job has an email account, which is often at least partially used privately. How should I proceed with the account?
If only business use of the email account was allowed, the employer can use the account as he wishes. Above all, he can also see it and have another employee look after it as he sees fit, so that no information and contacts are lost. The employer usually has no interest in deleting the entire account at first. However, the employee has the right to have a personalized account (first [email protected]) deactivated after a certain period of a few months after leaving the company.
The situation when private use of the account was allowed is still highly controversial. In this case, the employer may not simply delete the entire account (OLG Dresden, decision of 05.09.2012, Az. 4 W 961/12). The simplest solution for everyone is then that the departing employee removes the private mails himself and new incoming mails are automatically deleted - otherwise the employer would be obliged to forward the private mails.
Tip 5: define social media accounts
People are active in social media, from Linkedin to Facebook to Twitter. Often the employer is listed in the profiles. Does the account still remain that of the departing employee?
As so often: It depends: Is the account business or private? In practice this is usually mixed. If this is a purely professional account that affects official duties, the employer can demand that it be left to the employer, as the Hamburg Labor Court decided (ruling of January 24, 2013; Az. 29 Ga 2/13). Because the customer contacts contained there are possibly very important for the company.
If there is a serious dispute, it will of course be tricky, then questions like: Who is specified in the accounts and to what extent? Who will pay the costs? What content is shared on the platform? Such details can then be discussed for a long time. However, the employer requesting the surrender is regularly required to present and provide evidence. It will be very difficult to prove this in practice.
Tip 6: Don't argue about your testimony
Often a major point of contention is testimony. What entitlements does the departing employee have and how useful is it to request an interim reference?
In order to be able to request an interim reference, a legitimate reason is required. Such an occasion is, for example, when it is certain that the employee is leaving. However, a certain length of service with the company or a change of supervisor are sufficient reasons to prepare the employer for this work.
When the employment relationship is terminated, there is a right to be issued a job reference (Section 109 GewO). A distinction must be made between the simple and the qualified certificate. The employee can choose which certificate he would like to claim.
The simple testimony is relatively worthless. It only states that someone worked in the company during the period listed, perhaps the tasks for which the employee was responsible are also listed. There is no evaluation of the performance. Such a simple certificate is common, for example, if the employee was only employed for a very short time.
The entitlement to the qualified certificate is due when the employment relationship is legally terminated, i.e. at the end of the notice period or when the termination agreement takes effect. However, the employee still has to accept a reasonable processing time, which can certainly be two to three weeks. The collection of the certificate is incidentally an obligation to collect, so the employee actually has to collect it at the place of operation (BAG, ruling of 08.03.1995, Az. 5 AZR 848/93).
It is of course quite common to send the employer a proposal for a certificate formulation after consultation. Hopefully, this will also avoid arguments and a lawsuit for testimony. Incidentally, this is anything but popular with courts and lawyers. A dispute about individual words is simply uncomfortable, uncomfortable and protracted - and often also highly emotional. This is partly about the principle. As long as the truth of the testimony does not suffer here, a more generous approach is sometimes advisable.
Tip 7: Information about stored data
In the course of employment with the company, massive amounts of data about employees are stored. Does the employer have to delete them when they leave?
First of all, the employee always has a right to information about the data stored about him, even during the current employment relationship - and an employee can assert this right at any time, Art. 15 General Data Protection Regulation (GDPR). Not monthly, that would be an abuse of the law, but in the event of changes to the data or at regular intervals, possibly annually, the information is quite reasonable for the employer.
The employer must then provide copies of all stored personal data - this concerns assessments, correspondence with the employer, target agreements, completed training courses. Here, too, it is not without a dispute: It is unclear whether "personal data" also includes emails. The Labor Court (ArbG) Düsseldorf says no, that is going too far (judgment of March 5, 2020, Az. 9 Ca 6557/18). The State Labor Court (LArbG) Baden-Württemberg (ruling of December 20, 2018, Az. 17 Sa 11/18), however, also sees the emails as being included and considers the handing over of copies of any blacked out emails to be reasonable. The BAG should now clarify this controversial question in practice. The negotiations scheduled for September 2nd have now been canceled due to a settlement between the parties. The scope of the right to information remains unclear for the time being by the highest court.
With such a claim, the employee can of course cause real trouble again - even if they leave. In particular, because the claim is based on the (GDPR) and can trigger a fine in the full amount under Art. 15 GDPR, which is up to 20 million or up to four percent of the annual turnover achieved worldwide according to Section 83 (5) GDPR.
The ArbG Düsseldorf also ordered the company to pay € 5,000 in damages in its case because it had not responded to the request for information within a month and also incompletely.
Tip 8: Dealing with remaining vacation
Most employees have remaining vacation days when they quit or are given notice. How should this be dealt with, especially in the case of an exemption?
In the terminated employment relationship, the employer has the right to time off, but of course the employee does not. If the employer so wishes, he has to work until the last day. Anyone who finds this unjust should be comforted: the employee is paid for this until the last day.
A leave of absence can be revocable or irrevocable - and how the remaining vacation days are handled depends on this. In the event of a revocable leave of absence, the employer can ask the employee to come back to work at any time. Since the employee has to keep himself available, the vacation entitlements do not come to an end either. The vacation must either be taken until the end of the employment relationship or paid for in cash.
In the event of an irrevocable leave of absence, however, the vacation entitlements are settled - the employee can regenerate freely despite the ongoing employment contract.
The other rights and obligations from the employment relationship continue to apply to both forms of leave, so the employee may also have to report sick.
Professor Fuhlrott, thank you for talking to us.
The interview partner Prof. Dr. Michael Fuhlrott is a specialist lawyer for labor law and a partner at FHM Rechtsanwälte as well as a professor for labor law at the Fresenius University of Applied Sciences in Hamburg.
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