If the candidate is being interviewed for an employment position under private law, the employer is, according to § 670 of the German Civil Code (BGB), generally required to pay the applicant's travel expenses at a standard rate. However, this right is not mandatory. This means that the employer can exclude a claim for reimbursement by specifically informing the candidate in advance that costs will not be covered.
If the candidate is being interviewed for a public service position, the matter is subject to the legislation on travel expenses passed by the federal governement or the individual federal state. In this case, the candidate is only eligible to declare an interview as an official journey if he or she is already a public servant ("Beamter") and has been called for an interview.
In other cases, i.e. if the candidate is not as yet a public servant, expenses for travel to interviews for a public service position may be reimbursed in line with the respective relevant regulations, directives and enactments. These may differ considerably: they may not provide for any reimbursement at all or only for reimbursement of travel costs and not accommodation or a daily allowance. In some cases, travel from abroad is excluded from reimbursement or only half the costs are paid. There are also regulations which allow the respective faculty to reimburse travel expenses at their own discretion. For example, reimbursement can be charged to the faculty budget if it is likely that a candidate will be included on an interview shortlist.
Question from an experienced ITN (Initial Training Network) researcher, who, three months after completing his assignment, was asked to pay back a sum of money that had apparently been miscalculated by his German employer, but had been laid down in his contract. The salary components for ITN fellows are precisely specified by relevant EU Directives and must be paid to the fellow in the full amount. According to the EU Directives, it is possible to increase this salary, but only from the institution's own funds, not from ITN project funds. According to the EU, employment contracts are subject to the labour legislation, tax code etc. in effect in each country. What can be done in this case?
In the event of a possible salary overpayments to the employee, the legal situation is as follows:
- The first decisive factor is the amount agreed upon by the employer and the employee. If the employer made an error by indicating a higher salary in the employment contract, this error can only be corrected within a few days of being discovered by disputing this mistake vis-à-vis the employee. If the mistake is not disputed, the salary laid down in the contract becomes a permanently binding part of the contract and can only be corrected by terminating the contract with the option of re-employment under altered conditions.
- The employer is in a better position if the employment contract mentions external references on which it is based, such as EU Directives, specific sponsorship programmes or a labour agreement. If the salary indicated in the employment contract differs from the external regulations that are referenced in the contract, the employer can correct this inconsistency by promptly making a rescission statement.
- If the overpayment has occurred with no contractual basis (for example: the net salary per contract is 2,800 euro, but the employer accidentally pays 3,800 euro), the employer can demand repayment of the amount overpaid even after a longer period of time. The employee can, however, object that s/he has meanwhile spent the amount overpaid on necessary living expenses, if this is factually true. If the money is still available, however, the employee must repay it.
- If the employment contract or a labour agreement (such as TVöD) referenced in the contract contains a disclaimer, this disclaimer is valid even to the detriment of the employer. The employer must therefore declare that an overpayment has been made within the agreed cut-off period.
A researcher is a dual citizen and has the citizenship of both an EU country and a third country. The researcher currently resides in the third country and has been offered two year employment contract at a German university. Is the university allowed to treat the researcher only as an EU citizen or does the researcher’s dual citizenship need to be taken into account in some way? What influence does the researcher’s dual citizenship have on social security matters in Germany in this case?
A doctoral candidate from a third country is currently in Germany on the basis of § 18b of the residence law and working as an employee liable for social security payments. When he hands in his thesis, his 2.5 year employment contract will end and he will be unemployed for several months until he is awarded his doctoral title. With the end of his employment, the local immigration office will change his residence status and issue him a residence permit according to § 16b. This residency status allows him to work for 120 full or 240 half days according to § 16b paragraph 3. With this change, he would generally not be allowed to carry out any employment subject to social security contributions and is therefore not available to the job market. For this reason, he loses the access he has thus far gained to unemployment benefits (ALG I), unless he can prove to the Employment Agency (Agentur für Arbeit) according to section 139 paragraph 2 of the Social Security Statute Book III (SGB III) that his doctoral studies allow for employment liable to social security contributions for at least 15 hours a week, while still allowing him to complete the educational and examination requirements necessary for his doctoral work. In what form can this required evidence be provided in order to allow the doctoral candidate to not lose his access to unemployment benefit despite the usual, expected period of unemployment for doctoral candidates of several months?
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