Can I sign a new contract before resigning from a job that has not yet started

Question

I have accepted an offer and signed a contract that starts next month (from August).

However, now, I have a new job offer that I prefer. I would like to accept it and sign a contract for this new offer that starts from September so that I resign later after the employement from the first contract has started (using two weeks period notice).

Do you think it is possible and if there may be any problem?

The reason I don't resign the first contract before its start is that it incurs a penalty cost. But instead, since it is a probation period, I should be able to legally resign with a period notice of two weeks and start my next contract next month.

P.S.: Insights into German employment law would be appreciated

-------------edit------------ a link to the contract template can be found here

Answer 1

Don’t be a dick

Tell your earlier employer that you can no longer take the position rather than have them waste time and resources on you.

You can try to negotiate a waiver of the break cost, most people will agree. If they want to hold you to the letter of your contract then you’ll know you were lucky not to work there; pay them what you owe them and move on.

Answer 2

This would depend on the wording of the contract pertaining to resigning before the contract starts.

Normaly the notice conditions are the same as during the probation.

§622 - Notice periods in the case of employment relationships
(3) During an agreed probationary period, at most for the duration of six months, the employment relationship may be terminated with a notice period of two weeks.

Penalty costs are normaly for not showing up, not for giving notice - but depends on the exact wording of the contract.

Answer 3

Can I sign a new contract before resigning from a job that has not yet started

Yes. What matters is that the start date of the new contract does not conflict with your commitments pursuant to your contract with the first employer. If it does conflict, a more detailed assessment of your actual, prior contract would be required.

I resign later after the employement from the first contract has started (using two weeks period notice).

Do you think it is possible and if there may be any problem?

Yes. In fact, that is what you need to do in order to avoid penalization. Clause §12(3) prohibits the act of giving notice before the start date of the employment.

Surprisingly, in an employment context the right to rescind a contract is by default not cognizable under German law when a clause like §12(3) is in the contract ("Ein Rücktritt vom Vertrag ist nicht mögllich. Es gibt auch kein Widerrufsrecth beim Arbeitsvertrag."). The Finanztip website does not provide sources supporting that assertion. However, the fact that a clause on "Ausschluß der ordentlichen Kündigung" is declared null and void in other contexts (example: §723 Abs. 3 BGB) suggests that this clause is lawful and enforceable in a situation like yours.

It would not hurt if you just request the first employer to remove that clause. With this request for amendment you are hinting the employer that your intent is to resign as soon as lawfully possible. That information is sufficient for the employer to ponder whether to (1) stick to the current terms of the contract, or (2) reduce costs and streamline the imminent process of having to hire a new person very soon. In neither case would you incur a breach of contract, since this approach falls short of giving notice.

For evidentiary purposes, make sure that your interactions are in writing. Under German law, email is not cognizable for certain procedures. But procedures and evidence are two different things. You need to secure some evidence so that the employer is not tempted to falsely accuse you of violating the terms of the contract.

Answer 4

Sure, it is possible, but whether that is legal or ethical is another matter.

If your current contract is an exclusive one, that is, prohibits simultaneous employment elsewhere, then it proper, ethical and legal to notify your current employer if you wish to seek their permission or approval to grant an exception due to any reasonable mitigating circumstances.

However, if there is no conflict of interest and no harm done, then you will likely be fine to “ask forgiveness later if found out, than ask permission” as your current employer will have no reasonable grounds to sue you, even if the contract is exclusive, but if they are mean, they could penalize you from any salary they still owe you, for breach of contract.

By no conflict of interest, I mean absolutely no overlap in scope: the new employer cannot be considered even a potential competitor, supplier or customer or your current employer.

By no harm done, I mean you joining the new employer will not have any adverse effect on your current employer, including you being too tired to do both jobs at once, unless of course you are on vacation leave from current employer.

For example you work for PG&E on a contract but you have a new job offer from AT&T, then likely there will be no issue. Still, it is best to first consult your direct boss, with an off-the-records private advice/chat, rather than notify HR, if you are unsure.