Text 27591, 94 rader
Skriven 2009-02-17 14:28:41 av Michiel van der Vlist (2:280/5555)
     Kommentar till en text av Robert Bashe (2:2448/44)
Ärende: Contractual restrictions
================================
Hello Robert,

On Tuesday February 17 2009 10:30, you wrote to me:

 MV>> Lawyers are not infallible nor are they always honest. While
 MV>> illegal clauses are not enforcible, the employee will probably not
 MV>> contest it, if he does nopt know it is illegal.

 RB> You are obviously uninformed regarding the situation of contract law
 RB> in Germany.

Indeed.

Here it has happened that peple got saddled with contract specifying a try out
period of over two month. During this try out period the relation can be
terminated - by both parties - without cause.  The law limits it to a maximum
of two month. So a term of three month is automataicall void. But if the
employee does not know that, he may not contest it.

 RB>  Lawsuits are the rule, not the exception, and you can be
 RB> sure the kind of person who would have to sign a non-competition
 RB> clause in the contract would be 100% informed on what is allowed and
 RB> what is not. Such people are not uneducated handymen.

Here lawsuits are not all that common. Most conflicts in this area are settled
by arbitration.

In fact most people work under so called "collective contracts" They are drawn
up by the unions. Plus that it is not uncommon to have no contract at all. A
contract is not legally required. The mere fact that you do the job and get
regular payments establishes the legal basis for protection under the
employment laws.

I once had a job terminated in court, so I know the ropes...

 RB>>> If you believe the other side and can be bluffed. Employers are
 RB>>> generally more skeptical. Employees too: would _you_ believe an
 RB>>> employer who claims that such and such a salary is "average for
 RB>>> industry", or would you check that out before signing?

 MV>> Of course I would not believe it just because a potential employer
 MV>> says so.

 RB> Any more than an employer would take your word for it that you have a
 RB> better offer elsewhere.

Then he has the choice of letting me go or take the opportunity to keep me in
by offering me  raise.

 RB> In fact, the usual reaction in Germany would be to interpret your
 RB> statement as a voluntary termination. Such things have happened, and
 RB> have been upheld by the courts.

So in that case the bluff backfired. But if he was nit bluffing there was no
harm done to the employee. He took the job that was offfereed by the
competition.

 RB> You also ignore the "grapevine" that exists among companies. Any claim
 RB> you make would be checked out in a private phone call from one
 RB> department manager to another, or one general manager to another

That would not work if I did not mention the name of the competion.

 RB>  - and if it turned out you were trying to put pressure on your
 RB> current employer to increase your salary by citing an offer from
 RB> another company, you might just find yourself without either a job
 RB> _or_ an offer. Employers don't like to be blackmailed, or to be used
 RB> for blackmail.

Neither do employees, but why do you assume that I would be bluffing?

I was merely commenting on your claim that it would need industrial espionage
to maintain a system where employers pay more than the competition to keep
people in.

If someone goes to his boss and says he can get a better paid job elsewhere,
then obviously he feels he is not paid enough. If the boss wants to keep him,
he starts negotiating a raise. It does not really matter if it is bluff or not.
if the fellow is not satisfied with his pay, he will leave sooner or later
anyway if he does not get the raise. AND if the boss does not want to keep him,
he just lets him go.

The risk is with the employee. A good incentive not to bluff.

Ok, a better strategy if I have not actually got an offer yet is: He Boss, I
think I deserve a raise. If he says no, I say that I think I can get a better
paid job elsewhere and so if he will not negotiate a raise I will start looking
for it.


Cheers, Michiel

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