Who created the minimum wage
Statutory minimum wage: exceptions
Which employees do not fall under the minimum wage law?
The draft law of the Federal Ministry of Labor on the nationwide statutory minimum wage has been changed and weakened. The governing parties have agreed on exceptions to the minimum wage. The following groups of people are affected:
In the case of seasonal workers and harvest workers, the costs for board and lodging may be offset against the minimum wage. In addition, the possible length of employment for seasonal workers will be extended from the previously planned 50 days to 70 days a year.
Press publishers were able to deviate from the statutory minimum wage by 25 percent in 2015 and by 17 percent in 2016. This was to ensure, in the interests of freedom of the press, that newspapers will continue to arrive in the countryside in the future. The statutory minimum wage will only apply to newspaper deliverers without exception from 2017.
Newspaper deliverers received 75 percent of the minimum wage in 2015, i.e. 6.38 euros. In 2016 they received 85 percent of the minimum wage, i.e. 7.23 euros. From January 1, 2017, they will also be paid the full statutory minimum wage.
The law only provided this exception for deliverers who only distribute newspapers or advertising papers. Anyone who delivers advertising brochures or letters in addition to the newspaper as their main product is entitled to the full minimum wage.
Industry-specific transitional regulations
In some industries, hourly wages are currently well below EUR 8.50. In order to enable a gradual adjustment to the minimum wage, there is a three-year transition period until December 31, 2017. However, the prerequisite is that the industry-specific minimum wage on January 1, 2017 is at least EUR 8.50. From January 1, 2018, the general statutory minimum wage set by the minimum wage commission will apply without exception.
The transitional regulation can only be used by those who have agreed on a generally binding industry minimum wage. These are the meat industry, hairdressers, contract workers and laundry service providers for large customers, agriculture and forestry, the textile industry and horticulture.
In addition to trainees, young people in entry-level qualifications, regardless of whether they are publicly funded or not, as well as compulsory interns as part of an apprenticeship or study are not covered by the minimum wage law. The above legal relationships are educational relationships, not employment relationships.
In the case of voluntary internships that do not last longer than 3 months, there is also no entitlement to a minimum wage, if they serve career orientation or are carried out during training or studies. Originally only a six-week exception was planned.
However, if an apprenticeship or study-related internship lasts longer than 3 months and this is not provided for in the training or study regulations, the minimum wage must be paid from the first day of employment.
The federal government wants exceptions for refugees and immigrants to the statutory minimum wage (as of January 2017). The Ministry of Labor, the Ministry of Finance and the Ministry of Education have submitted a joint paper according to which no minimum wage has to be paid for a migrant if he or she qualifies for recognition of a foreign professional qualification in Germany.
A vocational training allowance should be able to be paid for these subsequent qualifications.
An example is a carpenter from Syria who applies for recognition of his qualification in Germany and does a nine-month internship.
Criticism from the DGB
The German trade union federation criticized the plans of the ministries. Companies are already using refugees who are not yet familiar with their rights as inexpensive workers, according to the DGB.
The Confederation of Employers' Associations rejected this argument. It is not about regular work, but about training-like qualifications that do not fall below the minimum wage.
Young people under 18 years of age
The minimum wage does not apply until the age of 18, so that many apprenticeships are affected by this exception.
The minimum wage does not apply to trainees, regardless of how old the trainee is.
In the first six months of their employment, the wages of the long-term unemployed, i.e. recipients of Hartz 4, may fall below the statutory minimum wage. This is intended to create incentives for employers to hire this group of people.
No exceptions to the statutory minimum wage
Some professional associations wanted to obtain an exemption from the minimum wage for their area, but did not succeed.
The bakers also tried to reach a transitional arrangement with regard to the minimum wage, but this did not succeed.
Athletes and coaches
Footballers who work as so-called contract amateurs or as mini-jobbers for a club are not always subject to the minimum wage law.
Whether the minimum wage law also applies to the trainer and instructor depends in particular on the number of hours worked. A contract player with, for example, a EUR 250 contract may only work for the club for 29 hours. This time can quickly be exceeded if you train three times a week and play an away game with a journey there and back. However, it has not yet been legally clarified whether the training and preparation times are also fully remunerated at EUR 8.84. However, there is much to suggest that these times also count as regular working hours.
If athletes have a 450-euro job, they have to work more than 53 hours before the minimum wage law takes effect.
Amateur and club athletes, on the other hand, do not fall under the employee term if their voluntary sporting activity and not the financial consideration are in the foreground. According to the Minimum Wage Act, volunteers are those who are not shaped by the expectation of adequate financial compensation, but by the will to work for the common good.
Amateur contract players in German sport do not fall under the minimum wage regulation if the following conditions are met:
- The contract players must be club members.
- You work on a voluntary basis and only receive a small allowance.
- You are registered as a mini jobber. Club activity is not her main job.
The rule that the minimum wage applies to a mini job does not apply to such club players. Such contracts are only intended to bind the players to the club and have nothing to do with traditional employment relationships. This applies not only to football, but to all sports with contract players. There are around 8,800 such players in the soccer field, who generally receive an expense allowance of around 250 euros.
Waiters, maids and ice cream vendors also received the minimum wage of 8.50 euros from January 1, 2015. The restaurant association wanted to ensure that the minimum wage would not be introduced until September 1, 2016. Previously there should be 7.50 euros per hour, from September 1st 2015 8.00 euros per hour. But that was not enough for the NGG union. The negotiations failed.
Even mini-jobbers such as waiting students or pensioners at the hotel reception now receive the statutory minimum wage. For some companies in eastern Germany, this means cost increases of up to 20 percent. In West Germany, on the other hand, nothing changed, as more than 8.50 euros per hour were already being paid.
It is questionable whether the minimum wage can be made up of different components, in particular whether and to what extent allowances can be offset against the minimum wage. That would be answered in the affirmative if the minimum wage were calculated from all payments made by the employer to the employee and only the average of all payments had to be EUR 8.50.
However, if one looks at the case law on the collectively agreed minimum wage, it can be concluded from this that allowances that have been promised for a particular work performance are not to be taken into account. This applies in particular to hardship allowances, night and holiday allowances and overtime.
According to this case law, on the other hand, the 13th monthly income can be offset if this is paid for the work performed during the year and not as a reward for loyalty to the company or as a special payment for higher spending on vacation or Christmas. The labor courts must clarify whether the case law can also be transferred to the statutory minimum wage. The union argues that if the 13th monthly income were credited, it would no longer be a special payment, but a withholding wage.
See also here: Definition of the minimum wage
The minimum wage can be asserted in court within the statutory limitation period of three years.
With a collectively agreed minimum wage, there are often shorter preclusive periods.
However, since the statutory minimum wage cannot be waived, collective bargaining claims up to the amount of the minimum wage should be subject to the statutory limitation period and not shorter exclusion periods.
Employers and companies have different options for circumventing the minimum wage. How it works?
Well, one can first take a look at the construction industry. There was an industry-specific minimum wage here even before the statutory minimum wage was introduced. There has already been a lot of manipulation there in the past. There are very irregular working hours in the construction industry. In many cases, the working time depends, for example, on weather conditions and the brightness. Companies should keep a record of when their employees actually start work and when their daily working hours end. Anyone who wants to bypass the minimum wage simply manipulates the lists with regard to the hours actually worked.
Or else: only one hour is billed, although the craftsman had to work 75 minutes. The employer simply calculates hours, which is easily possible in almost all areas.
In many industries, fixed times are specified for certain activities. For example, the employer has the option of instructing the employee entrusted with the cleaning to clean a part of the building within 2 hours, even though he knows that this takes 2.5 hours. The employer can therefore set a schedule for activities that are not to be adhered to. The employee then has to "rework" unpaid. Something similar can be heard from parcel services. Here, some companies give their drivers strict time limits for individual tours that cannot be adhered to, for example if a driver gets into a traffic jam through no fault of their own.
Another way of circumventing the minimum wage is for companies to let their employees work for them as self-employed. The minimum wage does not apply to the self-employed. Since the people work for a single company, they are so-called bogus self-employed. This trick is often found on construction sites. Foreign workers are driven to the trade office so that they can register as self-employed. The construction workers who speak little or no German often do not know what they are signing.
Converting a full-time to a part-time position with the same working hours is also a way of circumventing the minimum wage. For example, some hairdressers are said to have reduced working hours on paper to part-time. Nothing changes in terms of salary, but the employee now formally receives the minimum wage.
To ensure that the regulations of the Minimum Wage Act are not circumvented, a control function has been assigned to customs in the law. For this purpose, the authority is hiring 1,600 new employees.
Of course, employees who do not disclose false information from their employer also bear a certain degree of complicity.
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