The BEEG replaced the BErzGG with effect from January 1, 2007 and, like the BErzG, is intended to promote the compatibility of bringing up children and working2. With a view to strengthening women’s employment and demographic developments3, the legislator aims to change the framework conditions for equal participation in family responsibilities and employment4. The recognition of parental leave in statutory pension insurance and the BEEG are significant contributions.
The labor law provisions of the BEEG (§§ 15 to 21) are intended to promote the care of a child in its early phase of life while at the same time giving parents the freedom to choose between home care and gainful employment. In addition to the entitlement to parental allowance5 (until 2006: child-raising allowance), the BEEG therefore grants the option of taking time off without losing one’s job during parental leave (formerly: parental leave) and alleviates the conflict between career realization and family planning.
Unlike in the past, not only mothers, but all legal guardians can claim temporary suspension of their obligation to work for up to three years at a time, either alone, alternately or jointly (this is the intention behind the change in terminology from “parental leave” to “parental leave”). Sections 15 et seq. allow employees to take a break from work or reduce the amount of work to raise children without being forced to give up their livelihood.
According to Section 15 (2) sentence 6, the entitlement to parental leave cannot be excluded or limited by contract. Agreements that conflict with this mandatory law are therefore invalid in accordance with Section 134 BGB. Contrary to what the wording of the law might suggest at first glance, the de facto mandatory requirement, which is only binding on the employer, also applies to the company partners and the parties to the collective agreement6 in addition to the individual contractual level.
While the granting of parental allowance within the meaning of §§ 1 ff.7 is intended to compensate for the economic loss for the period of temporary complete or partial abandonment, the individual entitlement to parental leave under employment law supports the need of parents/guardians to be able to carry out the actual child-raising work through partial or complete release from the obligation to work.
In contrast to vacation law, exemption from the obligation to work does not take the form of time off granted by the employer. Nor is an agreement between the parties required for the temporary suspension of the obligation to work. Rather, the exemption occurs solely when parental leave is registered in accordance with the formal requirements. § Section 16 therefore also refers to the use of parental leave. The rules for granting leave cannot be applied in this respect.
The current version of the BEEG, as discussed here, applies to custodians who raise children born or taken into care after January 1, 2007. Otherwise, the provisions of the BErzGG in the version valid until December 31, 2006 continue to apply in accordance with § 27 (1). Insofar as there are no changes to the previous legal situation, the previous case law remains relevant.
