Why the German &quot;Agentur f&#252;r Arbeit&quot; would oficially support companys acting against German law? In the comments1 to this answer: Badly designed reimbursement form. What does that say about the company? I had yesterday an discussion where another user claimed by §670 BGB companys are in Germany legally required to reimburse any justified expenses the interviewee had to participate the interview. If this is not what §670 BGB says and the claim is wrong, that would answer my question, too. But for this post I first assume that it is true. So given that, I am wondering, why the german "Agentur für Arbeit" (which is an government organization AFAIK) has the following procedure, I went trhoguh multiple times (This happened exclusively with small companys, where I could understand they might try to get around additional expanses, tho): I applied for a position and got an invite for an job interview (No mention of reimbursement in any way) I forwarded the invite via email to the "Agentur für Arbeit" what is an requirement for them reimbursing me my expenses I had the interviews, and handed my proofs of expanses to the "Agentur für Arbeit" They requested me to hand them a written statement of the company that the company is not going to reimburse me any expenses. The company usually had already such a writing prepared and just sent it to me. The "Agentur für Arbeit" reimburse my expenses So my question is: Why would the "Agentur für Arbeit" openly support this behavior and why the companys are willing to hand out without hesitation such a written statement, if it was contradicting with the requirement by §670 BGB? 1 Comment transcript: Also companies are legally required to reimburse travelexpenses for interviews in Germany. – Nacorid @Nacorid: Definitely they are not! When I was supported by a social agency in Germany every time I wanted them (the agency) to reimburse my travel expanses, I had to hand in a written statement of the company that interviewed me, that they are not reimbursing any expanses I had. If they were legally required to, this whole process would be a farce. The only reason why most company's do it anyways, is cause they can hand in this reimbursement for their taxes. But they don't have to. – Zaibis @Zaibis §670 BGB clearly states that they are required to if they invite you for an interview, even if you do not get or accept any job offer – Nacorid Unless they clearly communicated, in writing for their safety, before the interview took place, that they are not going to reimburse travelexpenses – Nacorid @Nacorid: But can we actually consider an job interview being a contract? As I understand §670 BGB refering to actions been taken within a contract. Not a lawyer, tho. – Zaibis @Zaibis Not a lawyer either, however I’m not sure that contract would be an appropriate translation, since the law is talking about “Auftrag” which in the case of an interview would be the interviewee (“Beauftragter”) traveling to (“Auftrag”) the interviewer (“Auftraggeber”) for the interview (“Auftrag”). There have been numerous cases of denying reimbursement which were almost all ruled in favor of the candidate as long as the travel costs were reasonable. By which they for example mean “not a 1. class plane/train ticket for the role of a project manager” – Nacorid @Nacorid: In that case I still wonder, why the "Agentur für Arbeit" is willing to reimburse, for the company, as long, as you get a written (after requesting it) statement of the company, that they aren't willing to pay the travel expanses, given they were required by law to do so. That would mean, I got last year by at least 5 company's a written statement in which they confirmed, they don't respect German law. That sounds weird to me. – Zaibis @Zaibis That is because it is perfectly legal to declare beforehand that there will be no reimbursement and there might also be legal intricacies about “Arbeitslose” which I am not aware of – Nacorid @Nacorid I didnt say it was beforehand: The process was in at least 5 cases as following: I got an invite for an interview after applying (no mentioning of travel expanses) I accepted, informed the agency about the invite by forwarding the email. I had the interview, asked the agency for reimbursment and they asked me to provide a written statement by the company that they are not gonna reimburse me. I understand why the company would try getting around such a law. But not why a governor organisation would support the companys with it. Know what? I am gonna ask about this tomorrow on lawSE :) – Zaibis
What §670 BGB basically says is that the default is that companies have to reimburse you for expenses that you incurred for interviewing with them. If they don't want to reimburse you, they have to tell you so in writing before you incur any costs. That way it's your decision if you still want to go if you have to pay for expenses yourself. It does not mean your expenses have to be paid, it means you should know beforehand whether they will be paid. So what I take from your story is that you never actually asked the company for reimbursement, expecting the Agentur für Arbeit to pay that for you. Well, no company is going to pay your expenses if you don't ask for it. And that's not a crime. You also never told the Agentur für Arbeit that you were not informed beforehand that your expenses would not be paid. They asked for proof, you delivered proof. It's not their job to find out how or when you got handed this written statement and if that constitutes a violation of §670. And as a little reality check: paying your expenses (probably something along the lines of a cab fare or bus ticket?) is way more cost effective for the AA than suing a small company for the same amount. Just the time of the lawyer filing the suit will probably cost more than your public transportation ticket for the next year.
Some kinds of companies (e.g. freight shipping companies and banks) often do have those policies. The real issue is not whether those policies are permitted, but what the consequences are for breaking them. The fact that a company forbids its employees from exercising a legal right doesn't mean that the employee ceases to have that legal right. It simply means that if the employee exercises that legal right, then the employee has breached the contract and may suffer the consequences for breaching that contract. Violations of those policies are grounds for termination from employment, and this would probably not be void as a matter of public policy. For an employee at will this is really pretty meaningless, although it could conceivably affect unemployment benefit eligibility. But, for a unionized or civil service employee who can only be fired for cause, this is a big deal. But, in theory, a company policy does not impact the tort liability or the criminal liability of the individual engaging in legally privileged self-defense to anyone. This is because two people can't contractually change their legal duties to third parties with whom they are not in privity (i.e. with whom they do not have a contractual relationship). And two people also can't contractually change the terms of a country's penal laws. The policy may be a defense of the company from vicarious liability for the employee's use of force in violation of the policy that gives rise to civil liability for the employee because the grounds for authorizing self-defense were not present. If the employee using force did so wrongfully and was sued for negligence rather than battery, the existence of the company policy might also go to the issue of whether the employee was acting negligently since a reasonable person in the employee's shoes might have been less likely to wrongfully use force in purported self-defense if there was such a policy than if there was not such a policy (and instead there might arguably have been a legal fiduciary duty as an agent to protect the property and workers of the principal in the absence of the policy).
what taxes or fees does he need to pay? According to this glimpse of Austrian tax law, Franz would still have to pay income tax on any non-monetary compensation he gets from the company. See section of "Vermietung und Verpachtung [...]". Non-monetary compensation is typically known as benefits. The term serves to distinguish that compensation from (1) any cash flows from the company to Franz, which you ruled out in your description, and (2) any expenses the company incurs for business purposes involving Franz. Your mention that "nor does he take money out of the company in any other way" might mean that you ruled out benefits as well. I just wanted to be safe and preclude any misunderstanding in case you had in mind only cash flows from the company to Franz.
That is a very broad clause, broader than the default US rule for copyright, for example. (I know the question asked about the UK, I just happen to know the US copyright rule.) It would seem on the face of it to include independent research on a subject totally unrelated to the person's employment, done off the company's premises and not during normal work hours, but while the person was an employee.. Indeed it would arguably include the copyright to a novel written off premises and during off hours. Use of "course of employment" (instead of "term") would improve the provision. so would "as a part of his or her employment" or "closely related to the subject of his or her employment". Another possible restriction would be "Using the Company's facilities and/or equipment, or during normal working hours". However, my experience is that an employer will have drafted whatever language it uses through its company lawyer, and will be quite unwilling to alter it in any way. A prospective employee will probably be faced with a take-it-or-leave-it choice unless that person is a nearly indispensable figure to the company. One could send the company a certified letter saying, "When i signed the contract agreeing to {company language} I did not intend to include any developments made off company premises, not using company equipment, and unrelated to the subject or scope of my employment. I retain full rights to any such developments." Such a letter would help establish that there was no meeting of the minds to assign such non-employment-related developments or IP to the Company. How much weight it would have if the rights to such developments were the subject of a court case I am not sure.
I find that Petri Mäntysaari: The Law of Corporate Finance: General Principles and EU Law: Volume II, p. 115-140 can pretty much explain the reasoning for this. It is in chapter 5.3 on Terms non-binding as intended. The contract might not contain all legal requirements for some reason, or a clause might become invalid due to law changes. Sometimes the contract becomes unenforceable for some reason or another in part or full. The salvatorian clause is there to fix the defective clause to become the closest estimate to the written form that is legal and not deficient instead of being just dropped from the contract. This can save a contract from becoming unenforceable or making it void in whole. Especially look at Page 140: If a contract term is invalid because of a mandatory provision of law, it will be replaced by legal background rules(§306(2) BGB). One of the standard ways to address the situation is to use a so-called salvatorian clause. [...] This [reinterpretation/fixing of deficiencies] would not happen without a specific contract term. (See §139 BGB. On the other hand see also §140 BGB. Compare DCFR II.-7:302 and II.-7:303) A caveat though: if the alteration to the clause needed is too big and substantial, the contract as a whole can become void and null, no matter what the salvatorian clause said. It cannot overcome some burdens and there are regularly courts (I know this for Germany) voiding contracts due to such serious deficiencies. Notes BGB is the German "Bürgerliche Gesetzbuch", an english translation exists §139 says "If a part of a legal transaction is void, then the entire legal transaction is void, unless it is to be assumed that it would have been undertaken even without the void part." Example: a sale lacking any payment is not a sale (which starts a legally required warranty) $140 says "If a void legal transaction fulfils the requirements of another legal transaction, then the latter is deemed to have been entered into, if it may be assumed that its validity would be intended if there were knowledge of the invalidity." Example: a sale lacking any payment can be interpreted as a gift if the intent was to do so (and does not grant warranty) DCFR is the EU Draft Common Frame of Reference, so the above rules are to be found in the document as follows II.–7:302: Contracts infringing mandatory rules - p. 565. Paraphrased: "if a clause in a contract violates a law, substitute the law for it, courts shall decide if that alters or voids the contract. They may fix contracts to cure them." II.–7:303: Effects of nullity or avoidance - p. 574. Paraphrased: "void contract (parts) can constitute unjustified enrichment, transfer of items might not have happened, courts may fix contracts to cure." From the DCFR document one can read what happens in absence of a Salvatorian clause, especially for UK law. II.–7:302: I. Contracts contrary to law 1 All European systems deal with contracts which contravene some rule of law, as opposed to contracts which are contrary to fundamental principles of morality or public policy. 5 In ENGLISH, IRISH and SCOTTISH law the standard texts all include chapter headings such as “Illegality”, or “Statutory Invalidity”. See further Enonchong, McBryde, Law of Contract in Scotland1 , paras. 19.28-19.36, and, for the confused development of Scottish law, Macgregor in Reid &amp; Zimmermann vol. II, chap. 5. II. Effects of infringement 8 The general starting point in most European legal systems is that contracts violating legal rules are void. There is often, however, considerable flexibility in the law. 14 In ENGLISH and SCOTTISH law, while an illegal contract may be void, it is more often presented as “unenforceable”, in that neither specific performance nor damages are available to the parties. Thus a party may withdraw from an illegal contract with impunity. Courts will take notice of illegality of their own motion and dismiss actions accordingly (Chitty on Contracts I27, no. 16-199; MacQueen and Thomson, Contract Law in Scotland, § 7.15; McBryde, Law of Contract in Scotland1 , paras. 13.31-13.34, 19.17-19.27).). Again, however, there is flexibility in the law on contracts infringing statutory provisions. There are several cases in which the courts have considered whether giving effect to the statute requires the nullity of the contract as a supporting sanction (see e.g. St John Shipping Corp. v. Joseph Rank Ltd. [1957] 1 QB 267; Archbolds (Freightage) Ltd. v. S Spangletts Ltd. [1961] 2 QB 374, CA). English law is currently under review by the Law Commission: see its Consultation Paper on Illegal Transactions. The Commission’s provisional proposals were to the effect that courts should have the discretion to decide whether or not illegality should act as a defence to a claim for contractual enforcement. But the discretion should be structured by requiring the court to take account of specific factors: (1) the seriousness of the illegality involved; (2) the knowledge and intention of the party seeking enforcement; (3) whether denying relief will act as a deterrent; (4) whether denial of relief will further the purpose of the rule rendering the contract illegal; and (5) whether denying relief is proportionate to the illegality involved. II.–7:303: Notes 5 In ENGLISH law the general rule is against restitution but it is possible in exceptional cases where the claimant is not in pari delicto with the recipient, or the transaction has not been completely executed, or if the claim can be formulated without reference to the prohibited contract (Treitel, The Law of Contract9 , 490-504). IRISH law is similar (Clark 314-19), and so is SCOTTISH law (Stair Memorial Encyclopaedia vol. 15, paras. 764-765), although in one Scottish case where, by statute, contracts using old Scottish measures were void, restitutionary recovery was allowed in respect of a sale of potatoes by the Scottish acre, on the ground that there was no moral turpitude in such a transaction (Cuthbertson v. Lowes (1870) 8 M 1073; see further Macgregor, (2000) 4 ELR 19-45; McBryde, Law of Contract in Scotland1 , paras. 13.31-13.34, 19.22-19.26). The English Law Commission in its Consultation Paper on Illegal Transactions suggested that a court should have discretion to decide whether or not illegality should be recognised as a defence to a claim for restitution, various factors being taken into account. In addition the court should have a discretion to allow a party to withdraw from an illegal contract and to have restitution where this will reduce the likelihood of the completion of an illegal act or purpose, although it must be satisfied that the contract could not be enforced against the claimant, that there is genuine repentance of the illegality, and that it is not too serious.
Would this be legal? Probably at this scale. Not necessarily extrapolated to a large commercial operation involving more parties. At some point it becomes a payment system and a financial enterprise that becomes subject to financial regulation. Could her transfer be viewed as a donation as well? This is not a donation transaction and efforts to characterize it in that fashion would probably be disregarded by authorities. Could they be viewed as money laundering? The core element of money laundering is an effort to conceal the source of the funds for some purpose. It isn't clear if that would or would not be a motive. Other considerations A fairly common way to handle this kind of situation that is similar to what you suggest is called correspondent banking. Each side has an account in Russia and an account in Germany. Most day to day transfers happen by directing that money go from one German account to another German account, or from one Russian account to another Russian account. The big benefit of correspondent banking, aside from being transparent, is that it avoids currency exchange risks, fees and considerations for small, ordinary transactions. Of course, it simply isn't difficult or expensive to simply wire money from Russia to Germany, and vice versa, now and then. There are not strict currency controls, although there are some potential disclosure requirements. One reason for you, or authorities to worry about characterization of the transactions as money laundering is that if you have nothing to hide, simple wire transfers would be the usual and ordinary way of handling matters.
Normally the statute of limitations is five or six years (I think it's different between Scotland and the rest of the UK). The reason for the limitation is that if your employer asks for money back, you obviously should be able to defend yourself, for example by proving that you never received that money. After five or six years it is assumed that you wouldn't be able to provide any such evidence, so nobody can ask for the money back anymore. That's not specific to overpaid wages but quite general. In addition there is the question whether the pilots should have known they were overpaid. For example, I'm quite happy with my salary, but if it was less, I would look for and find a different job that pays better. If the company claimed in five years time that I had been overpaid all the time, then I would say that if they had given me the "correct" lower payment, I would have found a better job elsewhere, so asking me to repay the money seems quite unfair. (Why do you need to defend yourself? Maybe your salary was £3,000 per month. Someone in the right position records that they are paying you £4,000 but puts £3,000 into your account and £1,000 into their own. Then that person has an accident and their replacement finds that you were overpaid according to their records.)
This is an open question. California's Unruh Act prohibits discrimination in public accommodations on the basis of political affiliation. This same issue has come up previously, in a case where four neo-Nazis showed up wearing swastika pins at a German restaurant. When they refused to remove the pins, the restaurant called the police to remove them. The Nazis sued the restaurant under the Unruh Act, which prohibits various forms of discrimination in public accommodations (restaurants, hotels, etc.) Although the Unruh Act does not specifically mention discrimination on the basis of political ideology, the California Supreme Court has interpreted its list of classes as describing, not limiting, the classes eligible for protection, which it has also explicitly said include political affiliation: Whether the exclusionary policy rests on the alleged undesirable propensities of those of a particular race, nationality, occupation, political affiliation, or age, in this context the Unruh Act protects individuals from such arbitrary discrimination. Marina Point, Ltd. v. Wolfson, 30 Cal. 3d 721, 726 (1982). Based on these interpretations, the trial court refused to dismiss the Nazis' case against the restaurant, and the parties eventually settled without going to trial. Read commentary about the case here. So it seems clear that the Unruh Act prohibits discrimination on the basis of political affiliation. Because wearing a swastika indicates that you affiliate with the National Socialist German Workers' Party or one of its offshoots, the Unruh Act probably prohibits a business from discriminating against customers on the basis of wearing a swastika. But federal law may pre-empt the Unruh Act. But the problem doesn't end there, because intepreting the law that was creates potential conflicts with federal public-accommodations law, employment law, and the First Amendment. For instance, federal law prohibits the creation of a &quot;hostile environment&quot; in terms of both providing public accommodations on equal terms regardless of race, and in terms of equal employment opportunity regardless of race, color, religion, sex or national origin. Proving a hostile environment can be pretty difficult, but if you could demonstrate that allowing swastikas on premises created a hostile environment for customers or employees, you'd then have a strong Supremacy Clause argument that the Unruh Act can't be enforced to require the admission of swastika-wearing customers. Beyond that, businesses have First Amendment rights on generally the same terms as natural humans. There's a reasonable argument to be made that those businesses, in banning swastikas, are communicating a First Amendment-protected anti-Nazi message, or that they are exercising their right to control who speaks in the forum that they control. If the court were to accept either of those arguments, it would again mean that the Unruh Act probably could not be enforced to benefit those wearing swastikas.