Every euro your employer still owes you — overtime, bonus, expenses, vacation payout, salary differences — sits under two independent countdowns. The statutory limitation period (Verjährung) gives you roughly three years; a contractual or collective exclusion period (Ausschlussfrist) typically gives you three months — and in German employment disputes it is almost always the three-month clock that kills the money. The two clocks work by completely different rules: one merely gives the employer a defence, the other extinguishes the claim automatically. Understanding which clock governs which claim, and what stops each of them, is the difference between collecting and writing off.
Clock one: Verjährung — three years, counted from year-end
The default limitation period is three years (§ 195 BGB). It starts at the end of the year in which the claim arose and you knew (or grossly negligently failed to know) the essential facts (§ 199 Abs. 1 BGB). A salary claim from any month of one year therefore becomes time-barred on 31 December three years later — the year-end start makes the real period between three and four years.
Two features matter in practice:
- Verjährung is a defence (Einrede), not extinction. The claim survives; it just becomes unenforceable if — and only if — the debtor raises the defence. A court will not apply it on its own motion.
- It can be paused and restarted. Serious negotiations suspend it (§ 203 BGB); filing suit suspends it; an acknowledgment by the employer — a payment on account, an explicit admission — restarts it entirely (§ 212 BGB).
Clock two: the Ausschlussfrist — usually three months, and merciless
Exclusion periods (also called Verfallfristen) come from two sources: a clause in your employment contract, or a collective agreement (Tarifvertrag) that applies to your employment — sometimes without your ever having seen it. Typical structure: claims from the employment relationship lapse unless asserted within three months of falling due. Two-stage versions add a second step: if the other side rejects the claim or stays silent, you must file suit within a further three months.
The differences to Verjährung are brutal:
- Extinction, not defence. When the period lapses, the claim is gone (Erlöschen). The court applies this of its own motion — the employer does not even need to invoke it.
- Months, not years. Three months from the due date is the market standard; some collective agreements are even shorter for individual claim types.
- It cuts both ways. The same clause also kills employer claims against you — overpayment recovery, damage claims — which is occasionally your best friend.
Our separate deep dive on the Ausschlussfrist covers clause validity in detail; this article is about running the two clocks side by side.
Claims that survive an Ausschlussfrist
Not everything can be extinguished by three months of silence:
- Statutory minimum wage. § 3 MiLoG makes the minimum-wage claim immune to waiver and forfeiture — an exclusion period cannot touch it. Better still: in contracts concluded after 31 December 2014, a pre-formulated clause that fails to carve out the minimum wage can be void in its entirety under the BAG’s case law — leaving all your claims governed only by the three-year Verjährung.
- Liability for intentional acts. Limitation for intentional wrongdoing cannot be eased in advance (§ 202 Abs. 1 BGB), and the BAG reads standard exclusion clauses as not covering intentional torts and intentional contract breaches.
- Vacation — with an important nuance. Under the CJEU and BAG line, the underlying leave entitlement does not simply lapse at year-end unless the employer specifically invited you to take it and warned of forfeiture. But once employment ends, the money claim that replaces it — Urlaubsabgeltung — is a regular payment claim that exclusion periods generally do capture. The area is nuanced and fact-sensitive: if vacation money is at stake, take advice quickly rather than relying on a headline.
Everything else — overtime, bonus, commission, expenses, salary differentials, most damage claims — dies on schedule.
Asserting in time: an email is enough
For contracts concluded after 30 September 2016, pre-formulated clauses cannot demand more than text form (Textform) for the first-stage assertion (§ 309 Nr. 13 BGB) — a plain email stating who claims what and how much satisfies the clause. Older contracts demanding „written form” raise validity questions of their own; the practical rule regardless of vintage: send the assertion by email and keep verifiable proof, and if the amount is large, add a registered letter. The assertion must identify the claim and quantify it at least approximately — „I hereby assert my overtime claims” without numbers is risky.
The Kündigungsschutzklage as assertion
A special rule saves dismissed employees from an impossible treadmill: under BAG case law, filing a Kündigungsschutzklage counts as asserting the salary claims that depend on winning the case — above all default-of-acceptance wages (Annahmeverzugslohn) accruing after the termination date — and this covers both stages of a two-stage clause for those claims. The trap inside the good news: the lawsuit only covers outcome-dependent claims. Overtime from before the dismissal, unpaid expenses, the last commission run — none of that is asserted by the Kündigungsschutzklage. Those claims need their own text-form assertion within their own three months, alongside the three-week deadline for the dismissal itself.
Pausing the clocks
Serious settlement negotiations suspend the Verjährung (§ 203 BGB), and the courts have applied the same idea to exclusion periods in appropriate constellations — but the boundaries of „negotiation” are litigated territory. Never plan around suspension: assert first, negotiate second. The employer who keeps a friendly dialogue running until your deadline quietly passes is a classic pattern.
Audit your claims — the checklist
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Find both clauses
Read the exclusion clause in your contract and check whether a Tarifvertrag applies — its deadlines bind you even unread.
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List every open euro
Overtime, bonus, commission, expenses, salary differences, vacation payout — with gross amounts and the month each fell due.
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Compute each due date + 3 months
Each claim has its own deadline, rolling month by month. The oldest items die first.
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Assert in text form today
One email, all claims, quantified. Keep the sent copy and delivery evidence.
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Diary the second stage
Two-stage clause? Calendar the suit deadline the day you send the assertion — silence counts as rejection.
Worked example
Logistics coordinator, dismissed with notice to 31 March. Her contract contains a two-stage, three-month exclusion clause. Open claims: overtime €5,200 gross (accrued and due in equal parts on 31 October, 30 November and 31 December), expenses €900 (due 31 January), pro-rata bonus €4,000 gross (due with the March payroll).
She first seeks advice on 10 May. The audit:
- October overtime (due 31 October): assertion deadline 31 January — extinguished.
- November overtime: deadline end of February — extinguished.
- December overtime (€1,733): deadline 31 March — extinguished.
- Expenses (due 31 January): deadline 30 April — extinguished ten days ago.
- Bonus (due 31 March): deadline 30 June — alive.
Of €10,100 in claims, €6,100 is gone and €4,000 survives. The assertion email goes out the same day; the employer stays silent; suit is filed within the second-stage window and the €4,000 is recovered in full. Had she written the same email in mid-January, all €10,100 would have been preserved. The lesson costs nothing to apply: assert early, assert everything, assert in text form.
Frequently asked questions
My contract has no exclusion clause. Am I safe?
Check for a Tarifvertrag first — collective exclusion periods apply through reference clauses or direct binding effect, and they are common. If genuinely no exclusion period applies, only the three-year Verjährung limits you — a luxury position in German employment law.
Does the exclusion period also protect me against employer claims?
Yes. Valid clauses are typically mutual, and one-sided clauses face validity problems. Salary overpayments, training-cost demands and damage claims the employer raises late can be extinguished exactly like your own claims — always check the date arithmetic before conceding anything.
Is a WhatsApp message „text form”?
Text form (§ 126b BGB) requires a readable, durable declaration naming the declaring person — a message can technically qualify. Do not run the experiment with real money: email creates cleaner evidence of content, timing and receipt.
The employer kept negotiating until my deadline passed. Bad luck?
Not necessarily — genuine settlement negotiations can suspend the period, and bad-faith reliance on a deadline the employer itself caused can be barred. But these are rescue doctrines with uncertain outcomes, not planning tools. The safe sequence is always: assert, then negotiate.
Do exclusion periods apply to my severance from a settlement?
A severance agreed in a court settlement is enforceable from the settlement itself, on the terms and dates it states — you can enforce it directly without a new lawsuit. Claims created by the settlement are governed by the settlement; the exclusion-clause drama mainly concerns the claims that existed before it.