"Non-Germans" Under the Third Reich (36 page)

The theory of reasonableness in the individual case developed by the courts certainly did open the way to less harsh actions toward Jews on the part of employers than in the public service, but it is doubtful that it was applied de facto to any significant extent.

As far as employees in managerial positions were concerned, their dismissal (on the basis of the above-mentioned “broad” interpretation of the existing labor law) had certainly become normal practice before 1938.
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A special provision for such dismissals was later created by the Decree on the Exclusion of Jews from German Economic Life of November 12, 1938, according to which senior Jewish staff could be dismissed at any time.

After 1937–38, especially following the pogroms of November 9, 1938, when thousands of Jews were taken into “police custody,” that is, sent to concentration camps,
¹⁴⁷
discrimination against all other Jewish employees was also stepped up by the labor courts. In many cases their decisions anticipated the later deprivation of Jews’ rights.
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In this context it should be noted that Jewish employees were even denied the right to appeal against dismissal, an inadmissible situation, since sec. 56 of the National Labor Code (AOG) of January 24, 1934,
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allowed such appeal in cases in which the plaintiff had worked for more than a year in the firm and the dismissal had particularly harsh effects and was not justified by the firm’s situation.
¹⁵⁰
A dismissal was ruled by the court to be justified by the situation of the firm when, for example, the employer feared that he would suffer loss of earnings or have poorer chances in the competitive situation of the Reich if he continued to employ Jewish personnel.
¹⁵¹

When dismissals without notice on the ground of racial descent were sustained, there was a risk that the employees affected would lose all their pension entitlements. Much discussion revolved around the question whether the employer was bound by his earlier commitment to pay a pension to the dismissed employee. The Reich Labor Court decided on a case-by-case basis, presumably depending on the terms of the specific employment contract.

In the above-mentioned decision of March 20, 1937, the court stated that the question whether this dismissal (on racial grounds), which could not have been foreseen at the time the pension terms were formulated, should be treated as comparable to cases for which the pension was maintained. Through this ruling it became clear that dismissal without notice did not automatically lead to a loss of the pension. But in the decision of February 6, 1937, mentioned above, in the case of the dismissal of the Jewish member of the communal orchestra, the court ruled unequivocally that upon dismissal the person involved lost not only the right to any further wages but also the pension granted by the magisterial authority (this was a clear violation of the century-old principle of
pacta sunt servanda
and the principle of equal treatment of comparable cases established in the Civil Code). In the literature jurists also adhered to a restrictive interpretation. They argued that the main basis of the promise of pensions by the magisterial authority was to provide for subsistence in the event of old age or infirmity. Since this did not apply in the case of the dismissal of employees on racial grounds, the granting of a pension would not be applicable.
¹⁵²

In the context of discriminatory measures against Jewish employees, the question was discussed in the literature whether and under what circumstances (Jewish) pensioners who had retired in the normal way could subsequently be deprived of their pension for “important reasons.” Several theories were developed, one of which was to apply the principles on dismissal without notice directly or analogously to such cases, because, as these jurists asserted, the legal basis of the pension was the employment contract, which expired with the dismissal.
¹⁵³
(Such an argument was demonstrably unlawful, because retirement was the very opposite of dismissal, thus rendering any analogy impossible.) With regard to the excessive interpretation of sec. 626 of the Civil Code (dismissal without notice) mentioned above, on the one hand these theories effectively opened the way to depriving Jewish pensioners of their rights on account of their race. On the other hand, the courts argued in a more restrictive way that the withdrawal of pension rights had the quality of a punitive measure that hit the pensioner particularly hard. The judicature found the formula that revocation was justified only on the ground of such serious circumstances that a claim for a pension would be regarded as a violation of the rule of good faith.
¹⁵⁴
Such a violation was acknowledged (again) in analogous implementation of the German Civil Service Code, 1937, sec. 67, according to which state officials continued to have certain obligations even after cessation of their active duty—when the pensioner behaved in an offensive or harmful way toward the employer. Another reason for withdrawal was seen in the fact—analogously to secs. 132 ff. of the German Civil Service Code, 1937 (revocation of pension, if the entitled person was sentenced to death or penitentiary for high treason [
Hochverrat
] or national betrayal [
Landesverrat
])—that the person had
acted
as a “traitor” (it was not clear whether punishment was necessary in these cases). Racial descent was not explicitly cited as a ground for nonpayment of pensions. The right to withhold a pension, it was argued, always had to be judged according to the “special circumstances of the case.”
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The discriminatory practices did not concern only dismissals and pensions, however, and Jews were often refused other rights as employees. The Frankfurt/Main Labor Court denied Jews the right to vacation
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(in contrast to the Labor Court of Berlin as late as 1941).
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The Labor Court of Appeal of Koblenz refused payment of wages to Jews on national holidays in a “law-making” manner,
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thus anticipating the decree of October 3, 1941, referred to below.

These common discriminatory practices toward Jewish employees began to be “legalized” at the end of 1941, perhaps also in view of the forthcoming evacuation of Jews from the Reich (in preparation for “resettlement” and the Final Solution [see appendix 2, the Wannsee Protocol of January 20, 1941, which at this time was doubtless already decided upon at the highest political level]). This is certainly indicated by the coincidence of the events and the tendency of the special regulations to segregate Jewish workers from German workers and to establish forced labor for the former. Regarding Jewish workers with regular contracts, the Decree on Employment of Jews of October 3, 1941
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—which was issued in parallel with the incipient massive deportation of Jews from the Reich territory—openly established the advent of special law. With the definition that “Jews employed in work have a work relationship of a special kind” (sui generis) (sec. 1), Jews were completely excluded from the (general) labor law, and the Reich minister of labor was empowered to create any type of special clauses whatsoever for the “special employment of Jews” (sec. 2), with the agreement of the minister of the interior and the Party Chancellery.

The main consequence of this special treatment was the provision that Jews no longer had the right to call themselves workers, this designation being reserved solely for Germans. “Alien” workers were designated as the “labor force.” Further, the implementing order of October 31, 1941, attached to this decree, effectively established forced labor for all Jews and the principle of their segregation from German workers by obliging Jews to accept any work assigned to them and instructing the authorities to place Jews exclusively in “group employment,” that is, the “closed” (forced) labor service, separated from other “personnel” (secs. 11 and 12).
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As usual with special law, these clauses also lagged behind National Socialist practice. Forced labor for Jewish workers, as we have seen, was already commonly practiced before the decree of October 3, 1941, when only the most menial of jobs (road construction, garbage collection, clearing snow, etc.) for lower wages than for Germans, were of course considered appropriate to Jews.
¹⁶¹

The special treatment of Jewish workers was effected by designating in the implementing regulations the fields of labor law from which Jews were excluded and leaving the details to administrative orders issued by the Reich minister of labor. For instance, although pay rules were formally still valid for Jews, the administrative orders had deprived them of all real substance de facto: payment was made only for work actually done; health benefits and holidays with pay ceased to exist; family and child allowances, marriage bonuses, death benefits, Christmas bonuses, maternity benefits, short-time work allowances, and so on all fell by the wayside. The Decree on the Protection of Labor of December 12, 1939,
¹⁶²
was declared inapplicable to Jews. Unemployment benefits were granted to Jews only to cover “the absolute minimum to sustain life” (sec. 17). Protection against dismissal was abolished and replaced by a one-day notice with effect at the end of the next working day (secs. 3, 5, 6, 9, 15, and 18 ff. of the implementing order of December 12, 1939). Complaints arising out of work contracts were no longer dealt with by the labor tribunals but by a state agency (
Spruchstelle
) set up by the Ministry of Justice at which one judge sat (administrative order of the Reich Ministry of Justice, December 10, 1941).
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When the disciplinary rules were breached, Jews—like other “loafers”—were sent to the SS and police “work training camps.”
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b. Excursus: The Special Treatment of the “Alien Workforce”

Provisions identical or similar to those discussed above also applied to the mass of “alien” workers who had come into the Reich since 1940,
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indicating that the special treatment of Jews was basically only the thin end of the wedge that represented the discriminatory treatment of all non-Aryan workers.
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The aim of this special treatment, constantly repeated at great propagandistic expense, was “total exploitation” (
restloser Einsatz
) to meet the goals of the war economy.
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The general rules of the old German labor law, which was based on the principle of equal pay and equal social benefits for equal work, represented an obstacle for the political leaders, for whom the sole principle to be followed was to exploit “non-Germans” to the hilt. Furthermore, another purpose lurked behind these discriminatory measures in the minds of the political leadership, a favorite project of Hitler’s: to uproot the “alien” workers from their familiar environment by harsh treatment, to weaken their fertility, and thus to decimate them without bloodshed.
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The forced labor system for “alien” workers is thus highly contradictory. Industry and the administration were on the whole in favor of the promotion or at least the upkeep of these workers, and for reasons of efficacy they consistently appealed “in the name of reason and not least pure expediency” for their good treatment,
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in contrast to the radical ideas of the political leadership aimed at high output with the lowest possible living standards. As usual, political will prevailed over all arguments of economic reason: the sometimes draconian harshness of the special-law provisions mentioned hereafter
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stood in contradiction to the need for technical efficiency, although in point of fact foreign workers were often treated better in practice than was provided for by the regulations, if only because employers could not otherwise have met their production targets.

The responsibility for labor regulations covering foreign workers, who according to official data numbered almost 5 million in 1942, including war prisoners in the labor service,
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fell primarily to the offices of the Reich Ministry of Labor and the plenipotentiary general for labor allocation,
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who were empowered by decree of the Führer to regulate the forced labor of foreign nationals in Germany.
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The plenipotentiary general for labor allocation in particular had been invested with virtually unlimited powers.
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On instruction from him, commissioners were appointed in the Occupied Eastern Territories with the task of “recruiting and securing” foreign workers for German agriculture and the armaments industry in these territories and in the Reich. To this end they intended to set up a “sound pay scale in favor of the
Gro
deutsches Reich
” based on a piece-work and pay system with the aim of increasing output.
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In the Reich territory itself, the plenipotentiary general for labor allocation appointed the regional heads of the Party (Gauleiter) as his commissioners in the
Gaue
, so that the competence for dealing with “alien” workers at the regional level rested with the Party (the political power). The agencies of the labor administration and the general and internal administrations were pledged to cooperate with the commissioners.
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