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Threshold Values in German Labor Law and Employees Abroad - Friedrich Graf von Westphalen
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The Facts of the Case The claimant had been employed by the defendant since This will be assessed based on the scope of instructions, which the principal may give: If the principal may decide on the content of the performance, the kind of performance, the time, duration and place of performance, and if the contractor is strictly bound by these instructions, then the contractor will most likely be regarded as an employee.
Therefore, as a guideline it may be said:. The more the principal may determine the work performance of the contractor, the more likely the contractor is an employee. Labor courts will therefore decide on the legal status of a contractor by an overall assessment of various criteria such as:. As these criteria are still vague and in border cases hard to assess, the social security authorities have developed several criteria, which may be taken into account when determining the status of an employee.
These criteria are:. The decision whether a contractor is to be qualified as an employee or an independent contractor, depends on an overall consideration of these criteria. In their considerations, labor courts tend to focus more on the degree of personal dependency, whereas the social security authorities rely more on the economic dependence of a contractor. Finally, it should be noted that it is not relevant how the parties determine their contractual relationship.
Especially, it is not relevant how the parties have designed their contractual relationship in the contractual documents, but how the contractual relationship is exercised in the day-to-day business. Thus, even if both parties involved are convinced that their contractual relationship is a service agreement, it may still be assessed as an employment relationship by German courts or authorities and vice versa.
The differentiation between an employee and an independent contractor has several consequences for the parties involved. Especially with regard to social security law and tax treatment, there are significant differences between an employee and an independent contractor.
Fixed-term employment contracts under German law
Social security law In Germany, a comprehensive statutory social security system is established. The system includes health insurance, long term care insurance, unemployment insurance and a state pension scheme. The system is funded by social security contributions of generally all workers that have the status of an employee. Exceptions are made for marginal employment, short term employment and student employees. Here, the social contributions may be paid as a lump sum and borne in their entirety by the employer or may not accrue at all.
As a general rule, independent contractors do not participate in the German statutory social security system. They need to arrange for their social security on their own accord, e. Therefore, they usually receive a higher gross remuneration than comparable employees. However, with regard to the statutory pension scheme and for specific professions, there are exceptions to this general rule.
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Independent contractors, who do not employ any employees themselves and are mainly engaged by one principal only, must participate in the German statutory pension scheme and make contributions to it. In contrast to employees, they must, however, bear the total contributions themselves. Tax law There are also differences between employees and independent contractors regarding tax treatment:.
The services of an independent contractor are generally subject to VAT Umsatzsteuer. Certain professions are excluded from the taxation, such as specific professional medical services. Furthermore, an independent contractor is exempt from such VAT taxation, as a petty trader, for annual revenue up to EUR 17,, if the expected profit of the following year amounts, at most, to EUR 50, The independent contractor is responsible for transferring the incurred VAT and his personal income tax.
By virtue of statutory law, an employee is entitled to some particular benefits, each constituting a mandatory minimum level.
Thus, employers may grant more, but never less than what is stipulated in statutory law. An independent contractor by contrast is not entitled to such benefits by virtue of statutory law. In fact, where a contractor is granted these particular benefits by his principal, this may imply a disguised employment. These particular benefits include:.
Paid holiday leave Employees must be granted at least 20 days of paid holiday leave, based on a five-day week. However, it is more common in Germany to grant employees 25 to 28 days of paid holiday. In addition, employees are entitled to receive their regular remuneration on statutory holidays approx. Independent contractors on the other hand are, in general, not granted any paid holiday leave.
This is only natural as independent contractors by definition do not have a specific working time and are therefore free to take days off at their own discretion. However, they are typically not granted any compensation for such time off, as they only get paid for services effectively rendered. Paid sick leave In case of incapacity to work due to illness, employees remain entitled to receive their remuneration from the employer for a term of up to six weeks pursuant to the German Act on Continued Remuneration Entgeltfortzahlungsgesetz — EFZG.
This covers both. Under certain conditions, this entitlement applies several times per year, e. The German Act on Continued Remuneration does not cover independent contractors. However, this provision covers only a short period of time, generally less than a week, and its application may be excluded by the parties. As a general practice in Germany, independent contractors are not granted any compensation for sick leave at all. Special allowances Many employers in Germany grant additional benefits to their employees that are not mandatory, e.
Independent contractors, on the other hand, typically do not receive any such special allowances. Their remuneration usually exceeds the average salary of a comparable employee and no additional benefits are granted. The difference regarding the termination of an independent contractor and an employee is extensive.
Whereas an employee in general may only be terminated for a valid reason, an independent contractor may be terminated without cause, observing a contractual notice period. Special protection is provided to employees who generally face greater detriments in case of a dismissal, such as handicapped or pregnant employees. In such cases, the permission of relevant government authorities is required prior to issuing a termination.
Also, employees who act as employee representatives, such as a member of a works council or data privacy officers, enjoy special protection against dismissal. The act applies if:. Under the Act on Protection Against Unfair Dismissal, a termination of employment by the employer is only legally effective if it is reasonably justified.
Generally, a termination is only justified if it is based on grounds related to the person e.