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Articles: GERMANY

-EMPLOYMENT OUTLOOK-

Industry Experts Predict The Creation Of +360,000 New Jobs In 2011

A new survey carried out by German newspaper Bild among industry associations and industry experts forecasts that +360,000 new jobs will be created in Germany in 2011. According to the IGK Institute, the health and carer sector is growing very strongly because of the ageing population and the fact that more and more people are willing to invest in their health. The institute forecasts that +150,000 new jobs will be created in the sector in 2011. The Association of Temporary Employment Agencies (BZA) forecasts double digit growth in the sector in 2011. Currently there are 923,000 temporary employees in the country.

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Business Climate Improves Further

The latest Business Climate Index for German industry and trade published by research institute IFO rose in February 2011 for the ninth time in succession. More companies have reported a better business situation than in the previous month. With regard to their business prospects for the coming six months, they also continue to be optimistic.

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-DATA PROTECTION AND PRIVACY-

German Government Budgets 10 Million EUR to Set Up Data Protection Foundation

On February 8, 2011, the German Federal Commissioner for Data Protection and Freedom of Information issued a concept paper setting forth concrete suggestions for the creation of a Data Protection Foundation (the “Foundation”). The Foundation is intended to function in a manner similar to the German consumer protection organization ( StiftungWarentest) that evaluates and compares products and services for German consumers. Among its tasks, the Foundation will (1) test products and services for data protection compliance, (2) educate citizens to help improve “self” data protection, (3) conduct research activities, and (4) establish a data protection seal.

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International HR Briefing: Germany, July 2012

Revision of current data protection legislation in Germany has been the subject of debate before the German parliament since 2009. A draft Bill which resulted was heavily criticized by both trade unions and employer associations. However, it appears that the debate may have re-ignited recently and the most recent version draft legislation could become law in the near future. The focus of the Bill, so far as employers are concerned, is the protection of data relating to job applicants and employees. The main new elements include explicit regulation of the detection and prevention of criminal offences or serious breaches of obligation, use of video surveillance and the use of biometric assessments and telecommunications services. The draft legislation includes clear guidance as to the information a prospective employer is entitled to request during the application process. In addition, the proposals seek to regulate employer access to social networks. As currently drafted, deviations from the regulations will still be possible where consent is obtained or a workforce agreement is in place.

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New EU Data Protection Regime Will Bring Significant Changes

On 25 January 2012 the Commission’s official proposal for the reform of the European Data Protection Directive 95/46/EU was presented. We have analysed this 119-page draft and have summarised its main aspects. Although there will be further changes to the draft before its envisaged entry into force in 2015/2016, the decisive legislative phase begins now, with the possibility for interest groups to exert their influence.

On the whole, the Regulation is essentially in line with the law applicable in Germany to date. However, there will be numerous significant amendments in future.

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New German Act on Employee Data Privacy Likely

Companies with employees in Germany should pay attention to data privacy legislation that is likely to affect their operations this year because the German government’s ruling coalition has unexpectedly announced that it intends to soon pass employee data protection legislation. The legislation has been highly debated since it was first released in 2010. The revised bill will likely be consulted in the German parliament in late January, and the law would take effect six months after enactment. The new provisions would impose additional restrictions on employers; provide little clarity about which data processes are permissible; and will likely remain in effect even after the passage of the EU’s proposed Data Protection Regulation. And in light of the six-month implementation deadline, employers in Germany will be under considerable time pressure to prepare for compliance. The proposed law would also require most companies to change existing HR data privacy compliance programs and policies. Employers violating the bill’s requirements would be liable for fines of up to 300,000 Euros per infringement. And employees will be able to claim damages for alleged infringements and works councils can apply for injunctive relief.

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-BACKGROUND SCREENING-

Country Background Screening Essentials

The primary law governing background checks in Germany is The Federal Data Protection Act (Bundesdatenschutzgesetz (BDSG). As of 1 September 2009 the BDSG provides comprehensive regulation of the processing of personal data. In addition, each German State has privacy legislation and data privacy commissioners to enforce State laws. The German federal government amended the existing law on the processing of employee data in June 2010.. This new law now applies to virtually all data collected and used by employers over the course of an employment relationship. The new law allows employees to consent to the background check; however, it is very strictly limited.

According to Sec. 32a para. 8 of the law, any personal data shall only be collected directly from the affected employee or applicant. Any collection of data on the applicant from a third party requires prior opt-in consent. An exemption is made only for data that is publicly available so that Internet searches on the individual will generally remain permissible. In case an employment relationship has not been founded, the data of the applicant may only be stored further if the applicant has consented.

In addition, a prospective employer may only ask questions relating to particularly sensitive subject matter if the information is significantly and decisively pertinent to the work. In this context, sensitive data includes: disabilities, health, religious or political views – as well as criminal records and financial standing.

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Background Checks in Germany

Germany currently contains no specific legislation regarding background checks. However, statutory constraints do exist pertaining to the attainment and storage of personal data. Employers must stay within their rights and limitations outlined by the German Equal Treatment Act (AGG), the German Data Protection Act, and the personality rights of each applicant protected under the German Civil Code. Background checks in Germany rely most heavily on the principle of direct acquisition of data via the applicant.

Creditworthiness checks are also prohibited under the German Data Protection Act. Collecting personal data from the internet is allowed if this data is accessible to the general public, unless the protectable interests of the applicant outweigh this. Work-oriented sites such as LinkedIn are accessible to the public after log-in, whereas social networking sites like Facebook may not be available due to privacy settings. 

Employers walk a fine line when acquiring information and must maintain that all enquires are limited to information on the duration and type of employment. Should employers breach any existing rights, or conduct any impermissible background checks, applicants can assert claims for damages

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