Details

Parent Category: News Archives

Created on Tuesday, 16 February 2010 13:31

Last Updated on Thursday, 07 February 2013 15:43

Do I have to work during Carnival?

Welcome to Germany's fifth season in the year: Karneval! Work is generally is put aside in Rhineland. Does the employee have the right for days off, i.e. something like free days due to regional practice? LG2G will tell you!

[PPD_PAYTOREADMORE]

Mostly all employers as well as employees go crazy, um celebrate, together without any problems. Legally, however, there are several traps during this season of joy and happiness of crazy jokes. The first question is whether the employee is entitled to be freed from working during the holidays and if so whether the salary is to be paid - even when not required to work.

And what is the legal position? As typical in leqal questions: "Et kütt drop an (Es kommt darauf an. It depends.)". In Act on Holidays (Feiertagsgesetz), neither Weiberfastnacht nor Rosenmontag are mentioned. This means these days are no official holidays that grant you any legal right not to work. However, this could be in the unwritten regional consuetudinary law, or "Rhineland's Holiday Law", or Cologne's Constitution, or traditions. No, assuming that such law exists, they do not grant such right of having a day off. The Bavarian Constitutional Court even held that Faschingsdienstag is not a holiday in the understanding of law (re 17 P 05.3061 of July 25, 2007). [Ed. This is actually the least competent court to judge on Faschingsdienstag as a holiday. This Tuesday only has any legal "problematics" in Rhineland and nowhere else. Nowhere else but in Rhineland do all folks play amok on the five days of carnival.

In many areas in Germany, Rosenmontag is a day of customs. Everybody celebrates and no vacation day is needed. Several years ago, the labor court in Cologne had to decide in a case where a big discounter wanted to have its store open all day on Rosenmontag. The court considered the employer to have the right. This was a breakthrough for working on Rosenmontag. In the mean time, it has become customary to take a day or two off. When there is a works council, they will have to check if you are to work, rework, or cache days by working extra ahead of time or you have to take a day resp. days off.

Recent case law of the Federal Labor Court inclines not to decide according to local customs anymore but by company traditions. This can be explained with the fact those judges that come from carnival areas are only represented in proportion to the relation to the population in total - and are very seldom in a majority. In other words, when your company has so far always closed its doors without you having to take a day off for a significant number of years, then you can rely on that in the future, too. When the company decides one year to stop work on 11.11. from 11:11 o'clock on but the next year you only have free on Rosenmontag and Weiberfastnacht then there is no regular company tradition. The employer can prevent the development of such a tradition when he publically declares that he reserves the right to change any regulation (and so does) either to the individual employee or per notice on the blackboard. When the company has been working the past three years in a row on all relevant days of carnival, then that is the company's tradition. The same will generally apply for the question of receiving / paying the salary. The company's traditions decide.

Okay you have to work, but what about at least toasting with a glass of champagne? If you are allowed to drink alcohol or not is determined by what is customary in the company. When such is generally or only specifically tolerated on carnival, act accordingly. When you do not, the employer is permitted to admonish you and the give you notice – pertinant to normal rules of firing. When there is a works council, a general prohibition of alcohol must be acknowledged by the council (BAG 1 ABR 11/89 of February 13, 1990).

What about getting trouble for cutting the tie of your boss on Weiberfastnacht? AG Essen (judgment of February 3, 1988, re 20 C 691/87) held that you are not liable for damages in carneval strongholds. Judges in that area consider wearing a tie on Weiberfastnacht is like a tacit invitation to have it cut off. You will be neither liable for damages nor subject to prosecution. When you, as an expat are about to lose your tie and you wish to cling to it, the then best defense would to neglect any German knowledge when you first protest. That woman will then be able to realize that you're not from Rhineland. When "begging" for mercy, yes, do use your all of your German abilities. Most important defense will be of course that you did not know and promise to take it off ASAP – and do so. You may as a kind of token of goodwill and respect invite this lady to a swig. When there is a gas station, snack shop, then point to it and offer her a different reward.