In very many employment contracts it is agreed that the employee is not entitled to assign his/her claim to salary. The employment contract concluded with an employee constitutes "general terms and conditions" and is therefore subject to the provisions of § 305 et seq. BGB.
In October 2021, Section 308 No. 9 lit. a BGB came into force. This states that the provision according to which salary assignment is prohibited is invalid. From now on, such clauses are therefore inadmissible. Please note that the regulation according to which the assignment is prohibited remains permissible and effective for old contracts. Consequently, every new employment contract concluded after October 01, 2021 must be reviewed in this respect and, with immediate effect, such a prohibition clause must be deleted completely.
Since the prohibition of assignment is therefore ineffective, the employer must take the employee's notification that he/she has assigned the salary claim seriously. From this point on, the employer can no longer pay the employee in discharge of debt. Rather, he/she may have to pay the salary again, but this time to the person to whom the employee has assigned his/her claim. Only if the employer has no knowledge of an assignment can he/she continue to pay the salary to the employee(s) free of debt. This addition to the law raises serious concerns. However, as an employer, you must continue to pay attention to the garnishment-free amount. It is therefore possible that the assignment of the entire salary to a third party is invalid. Furthermore, the processing of such an assignment of remuneration involves further costs and work for the employer. If, despite notification from the employee, the payroll department continues to pay the salary to the employee(s), possibly by mistake, the employer must then pay the salary twice. In my opinion, the prohibition of assignment would make sense, since it serves to protect the employee from being financially overburdened by assignment of his or her salary. If the employee assigns his or her salary to the bank in order to obtain a loan or credit from the bank, the employee as borrower no longer has the opportunity to raise legal objections against the bank. The regulation on the prohibition of assignment does not apply to claims from so-called payment service framework agreements and also not to claims from the company pension scheme.
Care must be taken to ensure that only the assignment from company pension schemes is prohibited and not, possibly hidden or in a half-sentence, other salary claims.
The costs of such an assignment may be passed on to the employee. Caution is also required in this respect.
Up to now, the view has been expressed in the literature that salary assignment prohibitions can be effectively agreed in collective bargaining agreements. Whether this will stand up to subsequent case law is questionable. Caution is therefore advisable in any case.
It can be assumed that numerous discussions will still arise around this regulation and that case law will possibly also take a position on it.
Irrespective of this, it is urgently recommended that such non-assignment clauses be deleted from every employment contract with immediate effect.
For questions on this topic, please contact:
Specialist lawyer for labor and tax law