The Arbeitsvertrag (employment contract) creates the employment relationship and sets the core obligations: work in exchange for pay. It can generally be concluded without any particular form, even orally. Regardless of the contract, the employer must record the essential working conditions under the Nachweisgesetz (Verification of Employment Conditions Act); since 1 January 2025 this can also be done electronically in text form (Textform). For certain points, such as a fixed term, strict written form still applies.
At a glance
- Form-free and valid even orally; it arises from the agreement of work in exchange for pay
- Independently, the Nachweisgesetz requires recording the essential working conditions, since 1 January 2025 also electronically in text form
- A fixed term (Befristung), by contrast, needs written form with a handwritten signature before work starts (see Befristung)
- Standard clauses are subject to fairness review (AGB-Kontrolle, §§ 305 ff. BGB); if a clause is void, the statutory rule replaces it
Clauses the BAG scrutinises most
- Overtime lump-sum: void if blanket without a cap, see Überstundenklausel
- Forfeiture clauses: at least three months per stage, text form, minimum-wage carve-out, see Ausschlussfrist
- Training-cost repayment: only with a reasonable, tiered retention period, see Fortbildungskosten
- Contractual penalty: only with a transparent trigger and reasonable amount, see Vertragsstrafe
- Post-contractual non-compete: only with compensation and a reasonable scope, see Nachvertragliches Wettbewerbsverbot
- Reassignment reservation: may not unreasonably extend the right to instruct, see Versetzungsvorbehalt
- Voluntary benefits: can become a lasting entitlement without steering, see Freiwilligkeits- und Widerrufsvorbehalt
FAQ
What must the contract contain?
The essential working conditions: the parties, start date, place of work, role, pay and its components, working hours, holiday, notice periods, and a reference to any applicable collective agreements (Tarifverträge).
What happens to a void clause?
It falls away and the rest of the contract remains valid. The statutory rule takes its place, which is often less favourable for the employer than a well-drafted clause.
Can the employer later change the contract unilaterally?
Only within the right to issue instructions (Weisungsrecht, § 106 GewO). Broader changes require an agreement or a dismissal to change terms (Änderungskündigung).
Last updated: August 2026
This article provides general information and is not a substitute for legal advice in individual cases.
