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Orrick Employment Law Questionnaire

Version October 2023

Important Notes:
The purpose of this questionnaire is to gather specific information in order to create service and/or employment agreements. We may require additional information at a later stage which in turn might result in amendments to the draft agreement(s). The legal guidelines mentioned in this questionnaire are of general nature and may not cover every aspect. They cannot replace comprehensive legal, tax, or other advice tailored to the individual situation. We act as a legal counsel to the employing entity or an affiliated entity thereof but do not advise and assume no liability towards any of its or their directors, employees or service providers.

Questions marked with an asterisk (*) are required fields.

Before We Get Started – OLNS

For additional information regarding the matters addressed in this questionnaire (including the documents we list below), please also refer to our Orrick Legal Ninja Series #3.


OLNS#3 provides vital insights for young tech companies in Germany, covering staffing options, employment agreement drafting, fixed-term contract pitfalls, DocuSign usage, probationary periods, and strategies for protecting company know-how using non-competes and retention payments.


General Questions (company information)

Company address*
What kind of agreements need to be drafted?*
Should the general style of the agreements be formal, informal or standard?*

Please choose between these style options:

Toggle further information.

Managing director service agreement 1

Name*
Residential address*
Place of work*

Start date and notice period

Start date*

If you want to enter into a fixed-term service relationship with the managing director, please specify this (including the end date) in the 'Further remarks' section at the end of the questionnaire.

Which of the following two options do you prefer for the notice periods?*

You can choose between two options:

  • Option 1: This option provides for an indefinite term. However, a termination without notice for cause remains possible.

  • Option 2: This option provides for an indefinite term but stipulates a minimum term during which an ordinary notice of termination is excluded. A termination without notice for cause remains possible.


in month(s)

A notice period of three to six months would be regarded as costumary. However, notice periods are subject to negotiations between the parties. Managing directors may demand longer notice periods than three months. 

Remuneration

Company car *

If any, please add further remuneration components, such as special payments, bonus, allowances, etc.

Will the company take out a D&O insurance for the managing director?*

A Directors and Officers (D&O) insurance is highly recommended. A D&O insurance offers liability coverage for managing directors to protect them from claims which may arise from decisions and actions taken as part of their duties. 

Vacation

in days

25 to 30 days of paid vacation are market practice for managing directors.

Post-contractual non-compete (nachvertragliches Wettbewerbsverbot)

Post-contractual non-compete obligation*

We generally advise to enter into a post-contractual non-compete obligation with the managing director.  Please note  that the company must pay a compensation for such a post-contractual non-compete obligation during the restrictive period which amounts to 50% of the annual remuneration for each year of the post-contractual non-compete.

Toggle further information.

in year(s)

Post-contractual non-compete clauses can be agreed for a maximum of two years after termination of service. 

It is crucial to provide a comprehensive and specific scope for the post-contractual non-compete clause. If the post-contractual non-compete clause restricts the managing director from engaging in activities that exceed the scope of the company's legitimate interests, it is likely to be deemed unenforceable. Therefore, a detailed description of the company's activities is essential to maintain the proportionality and reasonableness of the post-contractual non-compete clause.

If you have any additional provisions, specific geographic areas where the company operates that you would like to include in the post-contractual non-compete clause, or any particular competitors in your industry that you want to include in the clause, please specify here. 

Further provisions

in month(s)

According to statutory law, employees receive continued remuneration in case of sickness for up to six weeks. For managing directors, you would usually grant similar coverage for six weeks up to three months. Please therefore specify the period during which managing directors shall receive continued remuneration in case of sickness.

Payment in the event of death*

In the unfortunate event of the managing director's passing during the term of the service relationship, a payment can be provided to their surviving dependents. The customary practice is to grant the managing director's remuneration to their dependents for the period of six weeks to three months. 



months after death
DocuSign*

If you want to use DocuSign or other eSignature tools for changes or amendments of the service agreement, please opt for this clause. Please be aware that changing the terms of a  managing director service agreement still requires the approval by the shareholders.

Signatory for the company

Signatory name*

The company is represented by the shareholders' meeting when concluding a managing director service agreement. The shareholders' meeting itself can determine in the shareholders' resolution, by whom it shall be represented for the conclusion of the managing director service agreement (e.g., by another managing director).

Managing director service agreement 2

Name*
Residential address*
Place of work*

Start date and notice period

Start date*

If you want to enter into a fixed-term service relationship with the managing director, please specify this (including the end date) in the 'Further remarks' section at the end of the questionnaire.

Which of the following two options do you prefer for the notice periods?*

You can choose between two options:

  • Option 1: This option provides for an indefinite term. However, a termination without notice for cause remains possible.

  • Option 2: This option provides for an indefinite term but stipulates a minimum term during which an ordinary notice of termination is excluded. A termination without notice for cause remains possible.


month(s)

A notice period of three to six months would be regarded as costumary. However, notice periods are subject to negotiations between the parties. Managing directors may demand longer notice periods than three months. 

Remuneration

Company car *

If any, please add further remuneration components, such as special payments, bonus, allowances, etc.

Will the company take out a D&O insurance for the managing director?*

A Directors and Officers (D&O) insurance is highly recommended. A D&O insurance offers liability coverage for managing directors to protect them from claims which may arise from decisions and actions taken as part of their duties. 

Vacation

25 to 30 days of paid vacation are market practice for managing directors.

Post-contractual non-compete (nachvertragliches Wettbewerbsverbot)

Post-contractual non-compete obligation*

We generally advise to enter into a post-contractual non-compete obligation with the managing director.  Please note  that the company must pay a compensation for such a post-contractual non-compete obligation during the restrictive period which amounts to 50% of the annual remuneration for each year of the post-contractual non-compete.

Toggle further information.

year(s)

Post-contractual non-compete clauses can be agreed for a maximum of two years after termination of service. 

It is crucial to provide a comprehensive and specific scope for the post-contractual non-compete clause. If the post-contractual non-compete clause restricts the managing director from engaging in activities that exceed the scope of the company's legitimate interests, it is likely to be deemed unenforceable. Therefore, a detailed description of the company's activities is essential to maintain the proportionality and reasonableness of the post-contractual non-compete clause.

If you have any additional provisions, specific geographic areas where the company operates that you would like to include in the post-contractual non-compete clause, or any particular competitors in your industry that you want to include in the clause, please specify here. 

Further provisions

month(s)

According to statutory law, employees receive continued remuneration in case of sickness for up to six weeks. For managing directors, you would usually grant similar coverage for six weeks up to three months. Please therefore specify the period during which managing directors shall receive continued remuneration in case of sickness.

Payment in the event of death*

In the unfortunate event of the managing director's passing during the term of the service relationship, a payment can be provided to their surviving dependents. The customary practice is to grant the managing director's remuneration to their dependents for the period of six weeks to three months. 



months after death
DocuSign*

If you want to use DocuSign or other eSignature tools for changes or amendments of the service agreement, please opt for this clause. Please be aware that changing the terms of a  managing director service agreement still requires the approval by the shareholders.

Signatory for the company

Signatory name*

The company is represented by the shareholders' meeting when concluding a managing director service agreement. The shareholders' meeting itself can determine in the shareholders' resolution, by whom it shall be represented for the conclusion of the managing director service agreement (e.g., by another managing director).

Freelancer agreement 1

Name*
Residential address*

Please provide a description of the services of the freelancer. 

Note that the description should fit into the following sentence: 

"The Freelancer is engaged with the Company as independent contractor in the area of [■]"

Service hours

Do you want to specify days per month and/or hours per day during which the freelancer shall be available to the company or shall this be completely flexible?*

Duration of the agreement

Start date*
End date*

Remuneration

Monthly/Daily/Hourly remuneration *
calender days
Shall travel costs and business expenses be reimbursed by the company?*

Signatory for the company

Signatory name

Freelancer agreement 2

Name*
Residential address*

Please provide a description of the services of the freelancer. 

Note that the description should fit into the following sentence: 

"The Freelancer is engaged with the Company as independent contractor in the area of [■]"

Service hours

Do you want to specify days per month and/or hours per day during which the freelancer shall be available to the company or shall this be completely flexible?*

Duration of the agreement

Start date*
End date*

Remuneration

Monthly/Daily/Hourly remuneration *
calender days
Shall travel costs and business expenses be reimbursed by the company?*

Signatory for the company

Signatory name

Employment agreement 1

Name*
Residential address*

The job title should be as accurate as possible to satisfy requirements of the Documentation Act (Nachweisgesetz - NachwG).

Start date*

If you want to enter into a fixed-term employment relationship with the employee, please specify this in the 'Further remarks' section at the end of the questionnaire.

Except in limited circumstances, a fixed-term employment agreement without a cause is only lawful for a total period of up to two years. An employment agreement for a shorter period can be extended by agreement up to three times for a total period of two years. 

However, newly founded companies can make use of fixed-term employment without cause for up to a maximum period of four years within the first four years after founding. 

Fixed-term employment agreements and extension agreements must be signed in writing before the start date, i.e., wet-ink signatures of both parties on a physical document are required. Otherwise, the fixed term is not effective and a indefinite employment agreement would be established. Neither eSignature tools nor scans meet the written form requirement.

Place of work*

Remuneration

Please add any further remuneration components, such as special payments, bonus, company car, relocation allowance, etc

Company pension and educational training entitlements, if any, must be added to the employment agreement according to the Documentation Act.

Working time and overtime

hours per week

In case of full time, the work week has 40 hours. 

The employee's working time may generally not exceed eight hours per workday. Workdays are the days from Monday until Saturday, in most companies, however, Monday until Friday; work on Sundays and public holidays is generally prohibited. 

If the company has specific break times (duration and / or timing) the employee has to observe, please add them here to satisfy requirements of the Documentation Act.

Shall overtime be fully compensated by the base salary?*

You can choose between two options:

Toggle further information.

Probationary period and notice period

in month(s)

The probationary period may not be longer than six months. During the probationary period, employment can be terminated without cause, observing a minimum notice period of two weeks.

Notice period*

You can choose between two options here:

  • Option 1: The (rather short) statutory notice periods (which in the first two years is four weeks to the 15th or to the end of a calendar month and increases with the duration of the employment relationship)

  • Option 2: The longer contractual notice periods (e.g., three months to the end of a calendar month)

The length of the notice period is subject to minimum notice period requirements under mandatory law.

Toggle further information.



in months

Vacation

All employees are by law entitled to paid vacation of 20 days, based on a five-day working week. However, 25 to 30 days of vacation are common in Germany.







Post-contractual non-compete (nachvertragliches Wettbewerbsverbot)

Post-contractual non-compete obligation*

You may also agree on a post-contractual non-compete obligation for a period of up to two years after termination of employment. Please note, that this requires compensation of at least 50 % of the last contractual remuneration during the restrictive period. Due to formal requirements, related costs and the difficulty of waiving a post-contractual non-compete, legal advice should be sought in advance.



Further provisions

Excluding clause for sec. 616 Civil Code*

In case an employee is prevented from work due to personal reasons without fault (e.g., in case of emergency), sec. 616 of the Civil Code (Bürgerliches Gesetzbuch - BGB) provides that the employee is entitled to continued remuneration "for a relatively not significant time". This claim can be excluded by adding this optional wording.

DocuSign*

If you want to use DocuSign or other eSignature tools for amendments, please insert this optional clause. However, note that agreements concerning the extension of the fixed term require wet ink signatures.

Signatory for the company

Signatory name

Employment agreement 2

Name*
Residential address*

The job title should be as accurate as possible to satisfy requirements of the Documentation Act (Nachweisgesetz - NachwG).

Start date*

Except in limited circumstances, a fixed-term employment agreement without a cause is only lawful for a total period of up to two years. An employment agreement for a shorter period can be extended by agreement up to three times for a total period of two years. 

However, newly founded companies can make use of fixed-term employment without cause for up to a maximum period of four years within the first four years after founding. 

Fixed-term employment agreements and extension agreements must be signed in writing before the start date, i.e., wet-ink signatures of both parties on a physical document are required. Otherwise, the fixed term is not effective and a indefinite employment agreement would be established. Neither eSignature tools nor scans meet the written form requirement.

Place of work*

Remuneration

Please add any further remuneration components, such as special payments, bonus, company car, relocation allowance, etc

Company pension and educational training entitlements, if any, must be added to the employment agreement according to the Documentation Act.

Working time and overtime

hours per week

In case of full time, the work week has 40 hours. 

The employee's working time may generally not exceed eight hours per workday. Workdays are the days from Monday until Saturday, in most companies, however, Monday until Friday; work on Sundays and public holidays is generally prohibited. 

If the company has specific break times (duration and / or timing) the employee has to observe, please add them here to satisfy requirements of the Documentation Act.

Shall overtime be fully compensated by the base salary?*

You can choose between two options:

Toggle further information.

Probationary period and notice period

in month(s)

The probationary period may not be longer than six months. During the probationary period, employment can be terminated without cause, observing a minimum notice period of two weeks.

Notice period*

You can choose between two options here:

  • Option 1: The (rather short) statutory notice periods (which in the first two years is four weeks to the 15th or to the end of a calendar month and increases with the duration of the employment relationship)

  • Option 2: The longer contractual notice periods (e.g., three months to the end of a calendar month)

The length of the notice period is subject to minimum notice period requirements under mandatory law.

Toggle further information.



in months

Vacation

All employees are by law entitled to paid vacation of 20 days, based on a five-day working week. However, 25 to 30 days of vacation are common in Germany.







Post-contractual non-compete (nachvertragliches Wettbewerbsverbot)

Post-contractual non-compete obligation*

You may also agree on a post-contractual non-compete obligation for a period of up to two years after termination of employment. Please note, that this requires compensation of at least 50 % of the last contractual remuneration during the restrictive period. Due to formal requirements, related costs and the difficulty of waiving a post-contractual non-competes, legal advice should be sought in advance.



Further provisions

Excluding clause for sec. 616 Civil Code*

In case an employee is prevented from work due to personal reasons without fault (e.g., in case of emergency), sec. 616 of the Civil Code (Bürgerliches Gesetzbuch - BGB) provides that the employee is entitled to continued remuneration "for a relatively not significant time". This claim can be excluded by adding this optional wording.

DocuSign*

If you want to use DocuSign or other eSignature tools for amendments, please insert this optional clause. However, note that agreements concerning the extension of the fixed term require wet ink signatures.

Signatory for the company

Signatory name

Employment agreement for working students

Name*
Residential address*

The job title should be as accurate as possible to satisfy requirements of the Documentation Act (Nachweisgesetz – NachwG).

Place of work*

Start date and duration

Start date*

We recommend entering into a fixed-term employment relationship with the working student as working students are usually not employed for an unlimited term. 

Except in limited circumstances, a fixed-term employment agreement without a cause is only lawful for a total period of up to two years. An employment agreement for a shorter period can be extended by agreement up to three times for a total period of two years. 

However, newly founded companies can make use of fixed-term employment without cause for up to a maximum period of four years within the first four years after founding. 

Fixed-term employment agreements and extension agreements must be signed in writing before the start date, i.e., wet-ink signatures of both parties on a physical document are required. Otherwise, the fixed term is not effective and a indefinite employment agreement would be established. Neither eSignature tools nor scans meet the written form requirement.

in month(s)
End date

Working time and remuneration

in hours

The working time of working students may generally not exceed 20 hours per week in order to be privileged in the social security scheme. A working time of 40 hours per week is however possible during the semester breaks. 

Overtime should be compensated by time off in lieu to comply with time limitations for working students. 

If the company has specific break times (duration and / or timing) the employee has to observe, please add them here to satisfy requirements of the Documentation Act.

Please add any further remuneration components, such as special payments, bonus, etc. We advise to also add any Company pension and educational training entitlements, if any, to satisfy requirements of the Documentation Act.

Probationary period

in month(s)

The probationary period may not exceed six months. In case of a fixed term of one year or less, the probationary period should be reduced appropriately, e.g., to three months.

Vacation

All employees are by law entitled to paid vacation of 20 days, based on a five-day working week. However, 25 to 30 days of vacation are common in Germany.




Further provsions

DocuSign*

If you want to use DocuSign or other eSignature tools for amendments, please insert this optional clause. However, note that agreements concerning the extension of the fixed term require wet ink signatures.

Excluding clause for sec. 616 Civil Code*

In case an employee is prevented from work due to personal reasons without fault (e.g., in case of emergency), sec. 616 of the Civil Code (Bürgerliches Gesetzbuch - BGB) provides that the employee is entitled to continued remuneration "for a relatively not significant time". This claim can be excluded by adding this optional wording.

Signatory for the company

Signatory name

Employment agreement for marginal employment

Name*
Residential address*

The job title should be as accurate as possible to satisfy requirements of the Documentation Act (Nachweisgesetz – NachwG).

Place of work*

Working time and remuneration

in hours

As the remuneration limit of EUR 538.00 gross must not be exceeded in order for the employee to have a status as a marginally employed employee (mini-jobber), you must be careful with regard the working time. If you pay the minimum wage of currently EUR 12.41 gross per hour, the maximum working time per month can be 43.35 hours which is ten hours per week. If you pay the employee more than the minimum wage per hour, then you must reduce the working time accordingly.


The working time of mini-jobbers must be recorded/documented.

If the company has specific break times (duration and / or timing) the employee has to observe, please add them here to satisfy requirements of the Documentation Act.



Please add any further remuneration components, such as special payments, bonus, company car, relocation allowance, etc

Company pension and educational training entitlements, if any, must be added to the employment agreement according to the Documentation Act.

Vacation

All employees are by law entitled to paid vacation of 20 days, based on a five-day working week. However, 25 to 30 days of vacation are common in Germany.




Start date and duration

Indefinite or fixed-term*

Except in limited circumstances, a fixed-term employment agreement without a cause is only lawful for a total period of up to two years. An employment agreement for a shorter period can be extended by agreement up to three times for a total period of two years. 

However, newly founded companies can make use of fixed-term employment without cause for up to a maximum period of four years within the first four years after founding. 

Fixed-term employment agreements and extension agreements must be signed in writing before the start date, i.e., wet-ink signatures of both parties on a physical document are required. Otherwise, the fixed term is not effective and a indefinite employment agreement would be established. Neither eSignature tools nor scans meet the written form requirement.

Start date*

Probationary period

in month(s)

The probationary period may not be longer than six months. During the probationary period, employment can be terminated without cause, observing a minimum notice period of two weeks.

Further provisions

DocuSign*

If you want to use DocuSign or other eSignature tools for amendments, please insert this optional clause. However, note that agreements concerning the extension of the fixed term require wet ink signatures.

Excluding clause for sec. 616 Civil Code*

In case an employee is prevented from work due to personal reasons without fault (e.g., in case of emergency), sec. 616 of the Civil Code (Bürgerliches Gesetzbuch - BGB) provides that the employee is entitled to continued remuneration "for a relatively not significant time". This claim can be excluded by adding this optional wording.

Internship agreement

Name*
Residential address*
Place of work*

Interns are not employed as regular employees which is why the internship always has the purpose to acquire practical knowledge and skills in a special field which must be specified.

We assume that this is an internship as part of or during the studies at university. If the reason for the internship is another one, please specify this in the 'Further remarks' section at the end of the questionnaire.

Duration

Start date*
End date*

Mandatory/Voluntary internship and remuneration

Mandatory or voluntary internship?*

Please note that the distinction between a mandatory internship (e.g., an internship which must be performed according to rules of a university or school) and a voluntary internship is important for the applicability of certain provisions under statutory law such as the minimum wage.

In case of full time, the work week has 40 hours. 

The intern's working time may generally not exceed eight hours per workday. Workdays are the days from Monday until Saturday, in most companies, however, Monday until Friday; work on Sundays and public holidays is generally prohibited. 

Interns in a voluntary internship are entitled to at least the statutory minimum wage of currently EUR 12.41 gross per hour which applies at the time of the internship. However, some exceptions apply, for example in case the internship duration is less than three months and takes place during the studies or shall serve as orientation for vocational training or studies. 

In a mandatory internship the statutory minimum wage does not have to be paid. In case of mandatory internships, it is common practice to pay a certain subsistence allowance, but this is not obligatory.

Vacation entitlement

In case of a voluntary internship, interns are entitled to the statutory minimum vacation of 20 days per year in case of a five-day work week. It is recommended that interns in a voluntary internship are treated the same way as employees with respect to vacation rights.

In case of a mandatory internship, no vacation must be granted but subject to the lenght of internship, some vacationd ays are usually granted. 

Further provisions

DocuSign*

If you want to use DocuSign or other eSignature tools for amendments, please insert this optional clause. However, note that agreements concerning the extension of the fixed term require wet ink signatures.

Note that in case the intern is not yet in the age of 18, certain regulations of the Youth Employment Protection Act (Jugendarbeitsschutzgesetz – JArbSchG), for example for working time or vacation, may be applicable. Please contact us in this case.

Please read – Certain Know-how Memos for companies

Please make sure that you also read the following Know-how Memos with additional information about issues that often arise in connection with the employment process. Please note the important legal notices and disclaimers at the beginning of each memo.

Important Note: This form is intended to be used only in a client-attorney relationship or the establishment of such a relationship. By clicking "Submit Form", you confirm that the information entered into it is either provided in the context of an existing client-attorney relationship with Orrick, Herrington & Sutcliffe LLP or for the purpose of the establishment of such a relationship.

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Attorney Section

Regarding the internship agreement

Please check if the client has mentioned a remuneration for the intern. If no renumeration is paid, the agreement may require a change in the IP transfer section.

Regarding the marginal employment agreement

Please be aware that the client has mentioned that he wishes to have a fixed-term agreement, which is currently not covered by our template. Please add the minimum term to the agreement.

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