Can an employment contract provide for remuneration in cryptocurrency?

According to the case law of the Federal Labor Court (judgment of April 16, 2025 - 10 AZR 80/24), this is possible under certain conditions.

Facts of the case

The judgment of the Federal Labor Court is based on the following facts. The plaintiff was employed by the defendant, a company that deals with cryptocurrencies, among other things, since June 1, 2019, initially with a gross monthly salary of EUR 960.00 with a weekly working time of 20 hours and from April 1, 2020 full-time with a gross monthly salary of EUR 2,400.00. In addition, a commission entitlement based on monthly business transactions was agreed in the employment contract until March 31, 2020. The commission was initially to be calculated in euros and converted into ETH at the “current exchange rate” on the due date - the last day of the following month - and paid. A transfer of ETH and a settlement of the commission claims did not take place until the termination of the employment relationship on December 31, 2021, although the plaintiff had requested the defendant to do so several times and had communicated a wallet required for the transfer on August 11, 2020. With the payroll for December 2021, the defendant paid the plaintiff EUR 15,166.16 gross as commission, which the plaintiff took into account in the amount of the claim.

With her lawsuit, the plaintiff most recently demanded commission in the amount of 19.194 ETH for the months of February and March 2020. The defendant took the view that, insofar as the commission claims were justified, it had fulfilled them through the payment made in December 2021. Irrespective of this, Section 107 (1) of the German Trade Regulation Act (GewO) requires the payment of remuneration in euros and does not permit its payment in a cryptocurrency. The lower courts upheld the claim - insofar as this is relevant to the appeal.

Reasons for the decision

The defendant's appeal to the Tenth Senate of the Federal Labor Court was successful only because the Court of Appeal incorrectly determined the attachable income within the meaning of Section 107 (2) sentence 5 GewO. Section 107 (1) and (2) sentences 1 and 5 GewO reads:

“(1) Remuneration shall be calculated and paid in euros.

(2) Employer and employee may agree on remuneration in kind as part of the remuneration if this is in the interest of the employee or the nature of the employment relationship. ...

The value of the agreed benefits in kind or the offsetting of the goods provided against the remuneration may not exceed the amount of the attachable part of the remuneration.”

The plaintiff is entitled to the asserted commissions, to be fulfilled by transferring ETH, on the merits. It is true that a “cryptocurrency” is not “money”, as required by Section 107 (1) GewO. However, Section 107 (2) sentence 1 GewO generally allows remuneration in kind to be agreed as part of the remuneration if this is in the interests of the employee. In the case in dispute, it was not necessary to decide whether and, if so, under what conditions - irrespective of Section 107 (2) GewO - an agreement in general terms and conditions (Sections 305 ff. BGB) is effective, according to which a claim to remuneration is to be fulfilled by transferring units of a cryptocurrency. The plaintiff has invoked the validity of the agreement; the employer, as the user of the clause, cannot invoke its invalidity. The content review does not serve to protect the user of the clause from the form provisions it has created itself.

This is the case if the transfer of a cryptocurrency is agreed in the employment contract. According to the circumstances of the individual case, this agreement was also in the objective interest of the plaintiff. According to Section 107 (2) sentence 5 GewO, however, the value of the agreed benefits in kind may not exceed the amount of the attachable part of the salary. The employee must be paid at least the non-garnishable amount of his remuneration in cash. This is intended, among other things, to ensure that the employee is not forced to first “exchange” the remuneration in kind into euros or claim social benefits in order to be able to meet the needs of daily life. A breach of Section 107 (2) sentence 5 GewO leads to the partial nullity of the agreement if the non-cash remuneration, such as the ETH unit in this case, is divisible. This means that the remuneration must be paid in cash up to the amount of the respective garnishment exemption limits and the remuneration in kind must be reduced accordingly. The Regional Labor Court correctly assumed these principles, but did not take the statutory requirements into account in every respect when determining the garnishment exemption limits in accordance with Sections 850 ff. of the German Code of Civil Procedure (ZPO). Since the facts necessary for the calculation of taxes and social security contributions were not fully established by the Court of Appeal, the Senate cannot decide whether the plaintiff is entitled to the transfer of ETH in the amount awarded. The case therefore had to be referred back to the Regional Labor Court for a new hearing and decision.

Note for the practice

It is particularly noteworthy that the defendant employer argued in the present proceedings that the contractual agreement submitted by him for payment in cryptocurrency was not legally permissible. In view of the express provision in Section 107 GewO, this is only correct with regard to the garnishment allowance. The Federal Labor Court only mentioned in a subordinate clause that an objection to this effect cannot be successfully raised by the user of the clause from the point of view of GTC control. However, this is of particular importance from the point of view of the employer's drafting of the employment contract. If clauses used by the employer that have an impact on both contracting parties can be challenged according to the standards of general terms and conditions control, this always only works unilaterally in favor of the opponent of the clause, i.e. the employee. Only the employee can invoke the legal invalidity of the clause; the employer, as the user of the clause, is bound by a clause that is contrary to the GTC.