• An employer may request that the employee disclose which job offers the employee received from Germany’s Federal Employment Agency (Bundesagentur für Arbeit) or Jobcenter.
• The employer does not have an independently enforceable right to information about applications and their outcomes.
• The right to information under Section 242 of the German Civil Code (Bürgerliches Gesetzbuch (BGB)) extends only as far as the employer needs information to trigger the employee’s secondary burden of producing evidence (sekundäre Darlegungslast) in default-of-acceptance remuneration litigation.

The Case—Dispute Over Default-of-Acceptance Remuneration After a Termination

The employee was discharged. The employment termination proved to be invalid. The employee then claimed default-of-acceptance remuneration from the employer for the period of nonemployment. The employer refused payment and argued under Section 11 no. 2 of the German Protection Against Dismissal Act (Kündigungsschutzgesetz (KSchG)) that the employee had maliciously failed to obtain alternative earnings in the meantime.

Because employers have the primary burden of producing evidence and the burden of proof (Darlegungs- und Beweislast), the employer brought a conditional staged counterclaim (bedingte Stufenwiderklage). The employer requested extensive information. The employee was to state which job offers the employee had received from the Federal Employment Agency or Jobcenter, including the activity, working hours,...

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