Dual Employment for At-Will Employment I'm asking on behalf of my friend. She has a full-time job at a university, and she worked for a month during summer at another company in a form of an at-will employment. There was no formal contract, although she signed a certain document specifying the conditions of employment, which states in itself that it is not a contract. After she stopped working at the new company and came back to the university, she realized that the signed document stated the condition that she should not receive salary from her original employer (the university) while working at the company. Since she was unaware of this condition, the university had already paid her salary, which potentially brings a dual employment issue. Since she never singed a contract, it's technically not a breach of contract, but she did sign a document which stated the condition of at-will employment. She seems to have inquired both the university and the company whether she can return her salary for the period or change her status from employment to 'visiting'(company) or 'break'(university), but seems to have been rejected. Looking from the company's side (since the university is abroad), could this be a legal problem?
If the employment was at will, the most the company could have done was fire her. If the employment has already been ended on good terms, the most the company can do is refuse to rehire her and/or give bad references. As you point out, no contract existed and they'd have a devil of a time proving damages anyway.
The relevant legislation is the Employment Act 1996, but in plainer language ACAS describe that they can make deductions for the following reasons: the employee's contract specifically allows the deduction it was agreed in writing beforehand they overpaid the employee by mistake it’s required by law, for example Income Tax or a court order the employee missed work because you were on strike or taking industrial action The first two provide pretty wide latitude into what they can make deductions for so long as it's in the contract/a written agreement The employer can't make deductions that would result in your wage dropping below minimum wage except in the following circumstances: tax or National Insurance something the employee has done which their contract says they’re liable for, such as damage to a vehicle through reckless driving repayment of a loan or advance wages an overpayment made to the employee made by mistake buying shares, other securities or share options in the business accommodation provided to the employee – find out more about accommodation deductions on GOV.UK something the employee uses – for example union subscriptions or pension contributions I'm not sure if it matters whether the employer is a private individual or a company Nope - for these purposes an employer is an employer To look at your specific examples: but assume that the employee is not doing a very good job No.. incompetence can get you sacked or fired - but it can't get your wages docked. At least not unless there was some performance-related-pay element to your wages already in the contract. But that would be difficult, it would have to be quantifiable. There's a reason why such structures typically have a base salary with performance-related elements paid as bonuses, because it's easier to simply not pay extra if thresholds aren't met than it is to deduct from a base wage. snoozing on the job Again not unless that was specified in advance - and that would be an oddly specific thing to include. Most likely they'd just get fired, in the majority of employment scenarios taking unauthorized sleeps on the job is going into Gross Negligence territory if there's a pattern. taking personal phone calls Taking personal calls is something that's more likely to be covered by a contract or company policy - but again it's more likely to lead to disciplinary action or sacking than wages being docked. You'd have to get into measuring how much time was lost in order to dock the appropriate amount etc. late into work You'd think this would be a slam dunk - you're late and therefore not meeting your contractual obligations. But in reality the same requirements as above apply - there needs to be explicit agreement in advance of the deduction in either your contract or other written consent for an employer to dock wages. It's probably more common than the other examples for such a provision to exist, but it still needs to be there.
First Part OR 324 is quite the right article for this. If the employer doesn't want that you work (because he has nothing to do for you) it's his problem, not yours. He still has to pay if you are there and ready to do work. This is for instance also mentioned in this article. The meaning of this is obvious if having a contract with a fixed number of work hours per day/month/year. Second part Prove that you have a fixed work contract. If the shift plans are made in advance you have a proof that you have a certain number of hours to work (and thus an expected income). If I interpret this here correctly, this is &quot;echte Arbeit auf Abruf&quot; (true work on request), because if your employer wants your work, you have to be there according to the shift plan, as opposed to your employer asking &quot;who is ready to work tonight?&quot;. So your employer must pay you the hours agreed on in the shift plan, regardless of whether he has work for you or not (but you must explicitly tell him that you are willing to take work). Third part Can the employer change the shift plan, and to what extent? The employer must announce changes to work hours as soon as possible, and changes on short notice are only acceptable in emergency cases. A reduction in work hours due to not enough work shall not reduce the employee's salary. The business risk is entirely with the employer and he must not shift that responsibility to his employees. (That was common in the late 19th and early 20th century, with all the officially self-employed home workers in the textile industry). Here is a federal court decision that affirms this (BGE 125 III 65 S. 66).
Don't do it. It is of course breach of contract when you signed a contract with no intention to fulfil it. However, you are talking about Germany. German employers take a very dim view of this. While a UK employer would say "good riddance" and do nothing, many German employers would see that as a personal insult. It's something that you just don't do in Germany. There's a good chance that they will do what they can to make you miserable if you do this. For example, inform authorities that you just cancelled your contract which may get a visa cancelled. Or tell the company that you want to start with, which will also take a very dim view of this. Or sue you for damages, not because they want to get the money, but to make you miserable. On the other hand, if they send you a contract, and you sign it, you have a contract.
The fact that you're not a native speaker of English doesn't alter the legal situation. If you literally had no understanding of English but for some reason you signed a piece of paper, then you might argue that there was no agreement in the first place, but obviously you do speak some English. Most people don't actually understand what contracts mean (on both sides). Contracts are still enforced, based on what the contract says. The move-in data is proposed, not firm, and it even indicates what the charges are if your circumstances change and the dates have to change (whereas is their circumstances change, they wouldn't have a basis for charging extra). It also does say that there will be no refund if you change your mind. So the piece of paper says "No refund". The problem seems to be that there's an "agent" whose statements you relied on, who is ultimately responsible for this problem, and s/he implied that you could get a refund. It's not clear what kind of "agent" this is (is he working for you, or for the owners?). You'd have a somewhat different legal basis depending on which it is, but you could sue someone in either event, assuming that you could actually persuade the court that you were given false information which you relied on. The statement "they will refund your money if the guy doesn't move out by the 16th" is false; the statement "they may refund your money if the guy doesn't move out by the 16th" is true. If the latter was the statement that you relied on, then you knew (or should have known) that that isn't a promise, it's just a guess, and if you read the piece of paper you know that it's a promise with no basis. So I would say it comes down to establishing what promise was made to you. Arguing that the agent "made" you sign isn't going to get you anywhere (unless you can prove actual coersion).
Without commenting on the relatively strange situation itself, it is still useful to actually read what was actually said than what was described in a letter from a third person, even if the relayed information is technically true. The supposed basis for the claim of a zero salary is from an email allegedly sent by the department head (appendix 15): In short, you are not teaching in 2022/2023 and you have not submitted the required outline of your research or other engagement. I am very sorry that we cannot establish that you will be doing any work expected of a faculty member. Thus we cannot pay you. Starting with the Fall semester, your pay will be reduced to zero and you will be placed on unpaid personal leave. Essentially, the professor is being put on an unpaid leave because allegedly he is not doing any work. Consequently, minimum wage laws are not engaged even if the professor is not exempt as teachers since he is not being required to do any work. In the U.S., employers generally can do this (unless a work contract provides otherwise); in many circumstances, it is called being laid off (though the term has attracted a permanent connotation in parts of North America) or being suspended. An indefinite unpaid leave can be considered constructive dismissal if the employer does not reasonably allow the employee to return to work. It may not be constructive dismissal if the unpaid leave is prescribed by binding employer policies or because the employee refuses to work (and the employer allows the employment relationship to continue). Even if it is constructive dismissal, it is not automatically wrongful.
It should contain one of the following two clauses: A clause that explicitly lists all of the side projects you are working on at the point of employment, that will not be transferred to the employer's ownership under Section 11 of the Copyright, Designs and Patent Act 1998 (&quot;the Act&quot;) which states (1) The author of a work is the first owner of any copyright in it, subject to the following provisions. (2) Where a literary, dramatic, musical or artistic work, or a film, is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary. (3) This section does not apply to Crown copyright or Parliamentary copyright (see sections 163 and 165) or to copyright which subsists by virtue of section 168 (copyright of certain international organisations). This would mean that your existing side projects are protected, but any future side projects would transfer to your employer under S11(2). This might be fine if you don't intend on doing any more side projects during your employment and simply want to protect your existing work. A clause that explicitly rejects S11(2) of the Act in relation to work undertaken outside of your employment and not on company resources, that is specifically defined as &quot;side projects&quot; (including a non-exhaustive list of examples) and the rebuttable presumption that any such work is outside S11(2) unless proven to the civil standard in a court of law. This provides balance to both sides: the employee is free to pursue their side projects outside of work, but in the event that they work on them in company time and on company resources (e.g. a laptop) the employer is free to rebut that presumption in court and have the work transferred to them. Generally, the second clause seems to be what most employees would want in a contract to protect their side projects. Whether it can successfully be inserted depends on the negotiation between both sides. Most reasonable employers would not refuse it. The leading case on the matter of S11(2) is Penhallurick v MD5 Ltd [2021] EWCA Civ 1770 (02 December 2021) which future courts of first instance are presently bound to follow, unless the Supreme Court issues a different decision. What does &quot;in the course of employment&quot; mean? Per Penhallurick mentioned above, &quot;in the course of employment&quot; is generally held to mean doing things that you are paid for as part of your employment. For example, if you are a baker and you write a novel in your free time, it is clear that has nothing to do with your employment: you are not being paid by the bakery to write novels. However, if you were to write a baking cookbook that incorporated recipes that you developed at the bakery, that could be held to be done &quot;in the course of employment&quot; because the bakery could argue that you are paid to develop new recipes for them. The development of side projects in relation to software development is fraught with peril. A lot of employers will try and advance the argument that, although you did not develop the work using company resources and time, your work is still &quot;connected&quot; to the area they operate in. Well known examples of this include Google asserting ownership of software development side projects that, on the surface of it, aren't done on company time and resources and don't appear to have been done &quot;in the course of employment&quot; as you are not being paid specifically to work on, e.g. game development when you are employed as a website backend engineer. If the employer can present enough evidence that what you are/were working on is &quot;connected&quot; to their business in some fashion, that is (at present, in England and Wales) sufficient for ownership to transfer to them under S11(2) even if the work wasn't done in company time and/or using company resources. An example of a clause that seeks to protect side projects Both Parties agree that Section 11(2) of the Copyright, Designs and Patent Act 1988 (&quot;the Act&quot;) does not apply to any and all Side Projects started prior to the commencement of employment. Both Parties also agree that S11(2) of the Act does not apply to any and all Side Projects started after the commencement of employment, specifically where said Side Projects are unrelated to the Employer's business of area of business. For the avoidance of doubt, &quot;unrelated&quot; has the ordinary meaning that a reasonable person would assign to it. For example, since the Employer operates in area of business, a Side Project regarding the development of an online video game is clearly unrelated to the Employer's business. This ex post presumption is rebuttable on the provision of clear and compelling evidence presented in a competent and validly constituted court of law in England and Wales that the Side Project was developed on company time and/or using company resources (e.g. a laptop) or that it validly infringes upon a business domain the Employer operates in. Both Parties agree that it will not be sufficient to adduce that the Employer &quot;could&quot; seek to operate in the Side Project's domain. For ownership to transfer under S11(2) of the Act, the Employer must demonstrate that they operated in that domain prior to the creation of the Side Project or that the Side Project has taken advantage of company resources that were not legitimately available outside of the company. For example, confidential company know-how that is specific to the Employer and not an industry standard or widely known thing. For the avoidance of doubt, use of open-source software (used in compliance with the licence and regardless of whether that software was created, released, or maintained by the Employer or someone else) does not constitute taking advantage of company resources. The Employer agrees to pay the Employee a sum of special damages assessed and awarded appropriately by a court of law in England and Wales for any attempt to subvert this clause or sue the Employee for a Side Project contrary to this clause. In the alternative, at the Employee's absolute discretion, a permanent injunction enforcing this clause may be awarded against the Employer.
Not very nice of the employer, actually quite cowardly. Being not nice and cowardly is not against the law. Being in the EU, and having been employed for ten years, the company will have duties to find a different position in the company at the same pay, and only when that fails, the employee can be laid off and will have a reasonable amount of notice, plus a reasonable amount of redundancy pay due to him. Unfortunately, he can expect only the legal minimum if the company behaved like this already. Good companies would provide a generous redundancy pay, plus pay for you to have any agreements checked by an employment lawyer of your choice - which means the employee can be sure they are not ripped off, and the employer is sure they cannot be sued for any reason. Obviously if they want him to quit, then the one single thing your relative mustn't do is to quit. Let them pay him. Plenty of time to look for a new job.