Dr. Jacek Kielkowski, LL.M.

Profile

Publications

General labor law

• Implementing Bring Your Own Device (BYOD) policies in conformity with labor law, in: Betriebs Berater 02/2012, p. 2625 ff. (with Oliver Zöll).
• Comment on Labor Court of Heilbronn judgment of May 8, 2012, in: AuA 12/2012, p. 732 (with Oliver Zöll).
• Termination without notice for cause after inter-employee violence, comment on State Labor Court of Cologne judgment of November 6, 2012, in: jurisPR-ArbR 24/2013 comment 2.
• Interpretation of a return clause, comment on Federal Labor Court judgment of December 20, 2012, in: jurisPR-ArbR 41/2013 comment 1.
• Invalidity of a waiver of a collectively agreed entitlement, comment on Federal Labor Court judgment of February 12, 2014, in: jurisPR-ArbR 29/2014 comment 3.
• Creation of a balanced staffing structure in bankruptcy, comment on Federal Labor Court judgment of December 19, 2013, in: jurisPR-ArbR 41/2014 comment 3.
• Circumvention of German Civil Code Section 613a when using a transfer company and partial avoidance of a tripartite contract, comment on State Labor Court of Frankfurt judgment of June 10, 2013, in: jurisPR-ArbR 3/2015 comment 1.
• Position of a director of a limited company organized under English law, comment on State Labor Court of Düsseldorf judgment of October 30, 2014, in: jurisPR-ArbR 7/2015 comment 3.
• Jurisdiction of the labor courts over the termination of a managing director, comment on Federal Labor Court judgment of December 3, 2014, in: jurisPR-ArbR 12/2015 comment 2.
• Vacation pay and annual bonus payments do not apply toward minimum wage, comment on Labor Court of Berlin judgment of March 4, 2015 (with Daniel Happ), in: jurisPR-ArbR 31/2015 comment 2.
• On the problem of post-contractual non-compete requirements for managing directors, in: NZG 2015, p. 900 ff.
• Institutional abuse of the legal system by using successive fixed-term contracts for a total of 9.5 years in schools, comment on State Labor Court of Hamm judgment of February 25, 2015 (with Martin Gliewe), in: jurisPR-ArbR 39/2015 comment 1.
• Conducting a consultation procedure for negotiations on reconciling interests before an arbitration board, comment on State Labor Court of Berlin-Brandenburg judgment of December 9, 2015, in: jurisPR-ArbR 16/2016 comment 2.
• Plant-level agreements. Internal and shop agreements as manifestations of plant-level co-determination (submitted as a dissertation at the University of Trier in 2015), Baden-Baden 2016.
• The escape clause is dead. Long live the escape clause! On the effectiveness of Section 16(3)(2) of the German Act to Improve Occupational Retirement (with Gerhard Schmalz), in: Betriebs Berater 2019, 2420 ff.
• The alleged binding effect of fee proceedings on works council members’ right to be released from work duties due to advisory costs (with Gerhard Schmalz), in: Arbeitsrecht Aktuell, 11/2019.
• Admissibility of a waiting period for the transfer of stock options, comment LArbG Munich, judgement of 17 April 2018, in: jurisPR-ArbR 39/2019 comment 2.

Compliance

• No fictitious employment relationship with temporary employment agency when temporary workers are employed on a non-temporary basis, comment on State Labor Court of Berlin-Brandenburg judgment of April 16, 2013 (with Daniel Happ), in: jurisPR-ArbR 46/2013 comment 2.
• Vacation: an obligation under occupational safety law – Employer’s obligation to pay damages for vacation not taken, comment on State Labor Court of Berlin-Brandenburg judgment of May 7, 2015 (with Daniel Happ), in: jurisPR-Compl 3/2015 comment 4.
• Calculation of gross wages in cases of illegal employment, comment on State Labor Court of Frankfurt judgment of October 17, 2014 (with Daniel Happ), in: jurisPR-ArbR 18/2015 comment 4.
• Differentiating between a work and services contract and (unlawful) temporary work, comment on State Labor Court of Hanover judgment of January 19, 2015 (with Dominik Zweigler), in: jurisPR-ArbR 27/2015 comment 6.
• Employment status of a program developer working from home, comment on State Labor Court of Frankfurt judgment of March 13, 2015 (with Daniel Happ), in: jurisPR-ArbR 46/2015 comment 3.
• Termination for violation of compliance rules, comment on State Labor Court of Mainz judgment of February 26, 2016 (with Daniel Happ), in: jurisPR-Compl 4/2016 comment 3.
• On the ability to issue a dismissal under third-party pressure if termination is requested by a supervisory body, comment on State Labor Court of Hesse judgment of July 13, 2016, in: jurisPR-Compl 1/2017 comment 4.
• Legality of special terms in severance agreements with works council members, comment on Federal Labor Court judgment of March 21, 2018 (with Gerhard Schmalz), in: jurisPR-Compl 5/2018 comment 3.
• Inadmissibility of statements of facts obtained through excessive employer monitoring under data protection law, comment on State Labor Court of Frankfurt judgment of September 21, 2018 (with Oliver Zöll), in: jurisPR-Compl 1/2019 comment 5.
• Triggering of the notice period due to an inadequate reporting process in the context of an internal investigation (with Jan Schlüter), in: jurisPR-Compl 2/2022 comment 1.
• Infidelity by granting excessive works council remuneration (with Dr Florian Junkers), in: jurisPR-Compl 2/2023 comment 1.

• Burden of presentation and proof in the event of termination due to unauthorised data deletion, comment on LArbG Hamburg, judgment of 17.11.2022 - 3 Sa 17/22 (together with Louisa Langer), in: jurisPR-Compl 4/2023 comment 2.

• On the liability privilege of an executive body due to internal allocation of responsibilities, comment on BGH, judgement of 09 November 2023 - III ZR 105/22 (with Alexander Hössl), in: juris-PR-Compl 1/2024 comment 6.

Data protection

• Company use of messenger services from a data protection and labor law perspective – corporate obligations and challenges when used for the employer (with Prof. Joachim Schrey and Patricia Gola), in: MMR 2017, p. 736 ff.
• Chatting for the employer – challenges of corporate use of messenger services from the company’s perspective (with Prof. Joachim Schrey and Patricia Gola), in: MMR 2017, p. 656 ff.
• Termination without notice for cause after submission of fraudulent certificate of incapacity, comment on State Labor Court of Cologne judgment of July 7, 2017, in: jurisPR-ArbR 48/2017 comment 3.
• Data protection shop agreement under the GDPR and German Federal Data Protection Act [BDSG] 2018 - Much ado about nothing? (with Prof. Joachim Schrey) in: Betriebs Berater 11/2018, p. 629 ff.
• Special protection against wrongful termination for a “deputy” company data protection officer, comment on Federal Labor Court judgment of July 27, 2017, in: jurisPR-ArbR 14/2018 comment 1.

• Scope of the right to information under Art. 15 GDPR in internal investigations, comment on LArbG Stuttgart, judgement of 20 December 2018 (with Oliver Zöll), in: jurisPR-Compl 2/2019 comment 1.

• No right of access in case of disproportionate effort, comment on LG Heidelberg judgement of February 21st, 2020 – 4 O 6/19 (with Oliver Zöll), in: ZD 2020, 313 ff.

Miscellaneous

• Mind the details in disclaimers – starting in October: new form requirements for employment contracts, in Legal Tribune Online, August 5, 2016
• Company use of messenger services (Parts 1 and 2) (with Prof. Joachim Schrey and Patricia Gola, in: Informatik Aktuell, March 21, 2017)