Germany job offer, potential employer wants to withhold 13th salary if I resign

Question

I've applied for a job and I got an offer. They've sent me a contract draft.

In the contract, the salary is only 12/13 of which we talked upon. There is also a specific clausule, saying that there is automatically a monthly bonus ("Vergütigung") after every year (i.e. in every 12th month, I will be paid twice). If I resign or they fire me, I lose this bonus. So they pay what we talked about - but only in the ideal case.

However, I think it is still a significant deviation from which we talked about. And honestly, I want more salary.

It is in Germany, and in Germany I think it is very uncommon.

I think I should say a counter-offer, saying that ok, but so I want more money to balance this additional risk.

What would be the best practice to communicate it? Or maybe I should rather run away?

Answer 1

From a German perspective this does not sound uncommon to me. In my experience it is quite usual to have the 13th salary included when calculating yearly pay, it is not uncommon to lose it when quitting within a certain range around payout of this 13th salary. If you want more salary, then go ahead and try to negotiate for it but don't feel ripped of because of the current offer.

P.S.: regarding your comment about the notice period: one month is rather on the low end for Germany.

Answer 2

EDIT: Piet.t's surprising answer prompted me to delete and replace my previous answer. A quick google search indicates that he is correct.

13th Month Bonus Payment in Germany

Since your employees are on a German payroll and subject to local employment laws, they may be entitled to (or come to expect) a ‘13th month’ of salary as an annual bonus. This amount should be calculated into the full year’s compensation package before the assignment begins.

https://shieldgeo.com/what-overseas-employers-need-to-know-about-payroll-and-tax-in-germany/

With that said, in the German courts, this issue may not be as clear cut as it seems:

The case was about an employee who had received a Christmas bonus several years, but resigned in September, so he claimed 9/12 of the bonus. The accused said : No, we only pay out when the employee is still working for us on 31 december of that year. The first rulings where in favor of the employer.

[...]

Based on those facts, the 10th senate of the Federal Labor Court ruled in favor of the employee and granted him the proportional payment of the Christmas bonus.

Bundesarbeitsgericht

https://www.quora.com/What-happens-with-the-13th-salary-in-Germany-if-one-quit-the-job-or-one-is-fired-in-November-after-working-1-3-years

In any case, if you're not used to German work customs, you may want to argue that you didn't know about this practice, and therefore you may want to ask to renegotiate the original agreement.

After all, an agreement is a meeting of the minds. If each party had a different perception of the terms at stake, I think it should be worth pushing back a little on this issue.

Also, if you're coming from a neighboring country where your previous salary was 50.000,00 Euros and was paid on a 12-month schedule. It would stand to reason that you wouldn't want to move to a German company that pays the same salary but on a 13-month schedule. Doing so would be the equivalent of taking a pay cut.

So to compensate for the added inconvenience and added risk to yourself, you should ask that they slightly increase your total compensation package overall to make up for this.

And at the same time, you should continue to send out your resume and interview with other employers. Having other interviews lined up will give you more confidence to negotiate properly for yourself.

Answer 3

It depends if this is being passed along as "13. Monatsgehalt" (a bonus salary, where there are regulations) or as a "Betriebstreuebonus" (a "loyalty bonus", where there are none), or as "Weihnachtsgeld" (where this is a common clause).

13. Monatsgehalt bei Kündigung:

Haben Sie oder Ihr Arbeitgeber das Arbeitsverhältnis im Laufe des Jahres beendet, stellt sich die Frage, inwieweit Ihnen dennoch das 13. Monatsgehalt zusteht. Auch in dieser Hinsicht ist die Unterscheidung zwischen Weihnachtsgeld und 13. Monatsgehalt wichtig. Scheidet der Arbeitnehmer vor einem festgesetzten Stichtag aus dem Unternehmen aus, verliert er seinen Anspruch auf das Weihnachtsgeld (siehe dazu unseren Tipp „Bekomme ich mein Weihnachtsgeld auch bei Kündigung?“). Anders sieht es aus beim 13. Monatsgehalt: Scheidet der Arbeitnehmer im Laufe des Jahres aus dem Unternehmen aus, bekommt er die Sonderzahlung dennoch ausgezahlt, allerdings anteilig.

Or another one:

• Das 13. Monatsgehalt steht dagegen auch Mitarbeitern zu, die unterjährig kündigen oder gekündigt werden. Die Sonderzahlung wird dann anteilig ausgezahlt. Wie oben schon erwähnt, kann das 13. Monatsgehalt bei Fehlzeiten jedoch auch gekürzt werden.

• Darüber hinaus gibt es auch noch weitere Formen, die Sonderzahlung und Treuebonus miteinander mischen. Achten Sie in diesem Fall darauf, wie diese Zahlung im Arbeitsvertrag bzw. Tarifvertrag geregelt ist. Etwa, ob Ihnen der Bonus auch bei Kündigung während des Kalenderjahres zusteht.

The contract clause may or may not be OK, depending which kind it is.

Answer 4

According to this article (in German), the decisive question is whether the bonus is only to reward "Betriebstreue" (loyalty to the company), or whether it is part of your standard salary. If it is exclusively for "Betriebstreue", this must be clearly stated in the contract.

Otherwise, you have the right to a proportion of this money if you resign during the year. This has been confirmed by the courts, even if the contract is worded differently. In general, terms in German employment contracts cannot unfairly benefit the employer.

As an example. if you resign after 6 months, you should have the right to one-half of the payment. So in total, you would still have half your yearly salary.

Answer 5

It does feel like a bait-and-switch, but it could also be a case of miscommunication. Speak again with whoever it was that you agreed upon the full number in the first place. Tell them that you made the verbal agreement with the assumption that it was all salary, not 12/13 salary and 1/13 bonus. They may adjust the offer to meet your expectations, meet you halfway, or stick with the contract you already received. In any case, you will need to decide if the job is still worth it for you.