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A few days ago I received a pretty interesting letter from my ex employer. During my time there I made minus hours, caused by the project situation (I am a software developer). The letter says I should pay the amount of minus hours back. In Germany there is a specific difference between Lohn (wage) and Gehalt (salary), I got the last one. That confused me cause Gehalt is payed independent from the days I worked.

What I would like to know is, do I have to payback anything? And if yes, why? And something I am pretty interested in, how does that comply with taxes and social insurances?

I hope it fits here, if not feel free to close it. I am not seeking legal advice I am more curios honestly.

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    How did you end up with "minus hours"? Took more vacation than you had? Sick days? Or did some time accounting thing with a company contract reduce your hours? – Ron Beyer Jun 27 '18 at 18:04
  • Minus hours means, I worked less than the 40h a week in my contract. It was caused by project situations – Knerd Jun 27 '18 at 18:06
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    If you were available and willing to work, but the employer failed to provide you with work to do, it seems unlikely that the employer has any legal basis to withold salary or demand repayment. Since I don't know German law, I can't really post this as an answer though. – RedGrittyBrick Jun 27 '18 at 18:23
  • I guess the next question would be... was the situation "Employer: Go home, we don't have any work for you" or was it "Employee: I think I'll take the rest of the week off since I won't have anything to do until next week"? – Ron Beyer Jun 27 '18 at 18:56
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    Like @RedGrittyBrick I have a very hard time seeing how a salaried employee could be required to return wages when the employer didn't provide 40 hours a week of work to a 40 hour a week employee. But, I also don't know German law well enough to be comfortable that this is indeed the right answer. In U.S. law this can only usually be done in cases of a violation of a the duty of loyalty (e.g. secretly operating a competing business while still working for the original employer as an employee). – ohwilleke Jun 27 '18 at 22:15
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I assume you had what is called a Arbeitszeitkonto (work time accounting) - meaning you were allowed to vary the amount of time you worked each day, and your work time was recorded on a time sheet, allowing you to "gain" or "lose" hours each day compared to your regular work time.

In that case, you may have to pay back the money.

There is a long article on this topic here: Negativer Saldos auf dem Arbeitszeitkonto – und seine Verrechnung beim Ausscheiden (Negative balance on the working time account - and its consideration when leaving employment).

The short rule is:

  • if you worked less because you wanted to, you may have to make up the deficit
  • if you worked less because you were told to, you don't (§615 BGB - note however that this can be changed in the employment contract)

To actually make the employee make up the "missing" time, the employer usually has to prove the employee asked for time off.

In addition to that, even if the employer is owed missing work time, they cannot necessarily take back salary already paid. Usually they are only allowed to ask the employee to work extra, or cut the next salary (because the salary paid while the employee worked less is considered an advance payment). Unless it is explicitly mentioned in the contract, they probably cannot take back money already paid, and even if it is mentioned, it might not be valid.

Finally, rights and obligations from an employment contract become unenforceable after the period of prescription (Verjährungsfrist) has passed. The limit is three years by default, but can be shortened in the contract, down to three months (which is not uncommon). In that case, claims arising from the contract (such as taking back wages) will expire after three months - check if this applies.

  • Interesting, do you know how it works with the taxes when you pay salary back? – Knerd Jun 29 '18 at 8:29
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    @Knerd: That's a complex topic (you also need to consider the social insurance deductions), but that's something your HR department should take care of. You just have to declare it in your tax declaration. – sleske Jun 29 '18 at 8:42

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