Directlink:
Example case
Lilia works for a German family where she looks after an elderly couple with dementia. Lilia has signed an employment contract with a German household services company through a Lithuanian private employment agency for 20 hours per week and earns € 9.50 per hour. She takes care of those in need of care around the clock. There is no one else in the house to help her. She is busy from early in the morning: She prepares meals, does the shopping, cleans the apartment, works in the garden, helps those in need of care with dressing and undressing, washing them, helping them to go to the toilet and giving them medication. She keeps them company while watching TV or when they have afternoon coffee and cake in the garden. Sometimes she has to get up at night to give them medication or take their blood pressure. The family installed the baby monitor in the grandparents’ bedroom so that Lilia can come at night when she is needed. Lilia only has free time once a week on Sundays. Then the daughter of the persons in need of care comes to visit and Lilia can leave the house.
Lilia phoned her agent from Lithuania and asked whether the entire weekly time spent in the house counts as overtime which should be paid. She was told that watching television, relaxing on the terrace or sleeping was part of the so-called inactive work time, for which she was not entitled to any compensation.
Lilia can get information about her rights free of charge from an employment law Advice centre. There are several such Advice centres across Germany:
Specific employment law Advice centres
https://www.arbeitundleben.de/arbeitsfelder/beratungsnetzwerk
https://www.faire-mobilitaet.de/en
Lilia can find an overview of all Advice centres by subject focus as well as by language at:
https://www.eu-gleichbehandlungsstelle.de/eugs-en/eu-citizens/searching-for-an-advice-centre
The advisers speak different languages and can advise Lilia in her mother tongue and anonymously.
A personal visit to the Advice centre is not necessary. Lilia can also call or write an email and, in some places, even contact it via WhatsApp.
The advisers check Lilia’s contract. She works in Germany, so the contract must meet the minimum conditions stipulated in German labour law, even if she got the job through a Lithuanian private placement agency.
Lilia has the right to receive the statutory minimum wage for every hour she works. From 1 October 2022, this amounts to € 12.00 gross. If Lilia’s employer were a care company and not a family, Lilia would have a higher sector-specific wage entitlement, the minimum care wage of € 13.90 (€ 14.15 from 01.12.2023).
There is no subdivision into “active” or “inactive” working time according to the labour law regulations. Willingness to work, which was wrongly described as inactive by the agent, is also part of working hours.
According to these regulations, it is both regular working hours when Lilia carries out activities and when she is available on site to carry out the work. Lilia has to stay in the house and has no option to use this time freely or to devote herself to any other activity. Therefore it is her working hours. Every hour of this working time, whether active or inactive, has to be paid for
In order to document her working hours, Lilia should write down the work processes and their duration daily if possible: e.g. Tuesday 20.03
7.30–8.00 Help the people requiring care to Go to the toilet
8.00–8.20 Help getting dressed
8.20–9.00 Preparation of breakfast
9.00–9.40 Help at breakfast
9.40–10.15 Clearing up after breakfast
10.15–11.15 Accompanying them in the garden
11.15–12.00 Bake a cake for the people needing care
Writing this down makes it easier for Lilia to obtain her rights and justifies a notification to the responsible control authority (see step 5) if Lilia decides to take this step.
In Germany, working hours are regulated in the Working Hours Act. According to this, Lilia is generally not allowed to be employed for more than eight hours (in exceptional cases ten hours) per day. This requirement is aimed at her employer. The employer is obligated to organise her working hours in such a way that this legal framework is adhered to. After more than six hours of work, Lilia must be given a break of at least 30 minutes and after more than nine hours of work of at least 45 minutes. Lilia must have an uninterrupted rest period of at least eleven hours after completing her daily working hours. These rules also apply to home care.
After receiving the advice from the Advice centre, Lilia is determined to fight for her rights. She wants the minimum wage she is entitled to for all of her working hours. She also wants the employer to be punished and other care workers who are employed there to be paid properly. In Germany there is already a judgement of the Federal Labour Court, in which the right to remuneration for every hour worked was confirmed (Federal Office for Goods Transport (BAG) 06/24/2021 5 Central Register of Foreigners (AZR) 505/20).
To claim the minimum wage, Lilia has to go to the Labour court. There is no authority in Germany that can do this for her. The Labour court responsible is located where the employer is based. Lilia can also go to the Labour court in the place where she worked. Lilia finds the address of the Labour court using this search engine:
https://www.justizadressen.nrw.de/de/justiz/ gericht?ang=arbeit&plz=&ort=
To file the legal action, Lilia needs the calculation of the statutory minimum wage:
With the help of the time sheets that she has kept, she has to add up her working hours and multiply by the amount of € 12 (amount of the minimum wage at the time of employment in 2023). After deducting the wages that she has already received, she is still entitled to the difference.
Lilia can ask a lawyer to represent her. Lilia can hire a lawyer, for example via the embassy or through a recommendation from friends.
There are also search options on the website of the Bar Association, which can be used to find lawyers with different language skills and specialisations. An example is the search engine of the German Lawyers’ Association:
https://anwaltauskunft.de/magazin
An Advice centre can also help her to find a lawyer.
If Lilia is a member of a trade union, a union lawyer can represent her in court free of charge.
The steps of the Labour court procedure are described in Chapter 2: “Non-payment of wage”.
If the minimum wage is not paid, it is an administrative offence that will be punished. Lilia can therefore report the case to the Financial control of illegal employment.
It is best if she gives precise details of her working hours and activities in her claim and attaches a copy of the employment contract with the pay slips.
Lilia uses this search engine to find the office responsible for the financial control of undeclared work:
https://www.zoll.de/EN/Contact/Enquiries/
General-enquiries/general-enquiries_node.html
Lilia can report personally to the financial control any undeclared work, file a complaint and make a statement. If that is not possible, she can also submit a message online:
https://www.zoll.de/EN/Contact/Enquiries/General-enquiries/general-enquiries_node.html
The employer can be fined up to € 500,000 if the investigation confirms Lilia’s allegations
Working around the clock violates the Working Time Act. Lilia can therefore also contact the local Occupational health and safety authority, which is a supervisory authority, among other things, for working hours:
https://lasi-info.com/ueber-den-lasi/ arbeitsschutzbehoerden-der-laender
The employer can be checked and fined up to € 15,000 for the violation.
These authorities cannot help to claim the wages. But they can check the service company and make sure that the same thing does not happen to other workers as it did to Lilia.