Office for the Equal Treatment of EU Workers

Special forms of work

1. Posted workers

Posted workers (entsandte Arbeitnehmer/innen) is the term used if a company temporarily provides its services in another country and sends its own employees there for this purpose, or in other words posts them temporarily to the other country.

Labour law

If you have an employment contract with an employer established in your country of origin, and you are temporarily sent to Germany on its behalf, then in principle the labour law of your country of origin continues to apply. However, you can invoke German labour law in certain areas if the German provisions are more favourable to you. This includes, in particular

Please note: If a posting is for longer than a month, the employer must issue a document summarising the main conditions of the posting, known as a posting contract (Entsendungsvertrag). Make sure you receive a posting contract from your employer.

If you are posted to Germany and you have difficulties with your employer abroad, you can contact an advice centre in Germany which specialises in the posting of workers.

Please note: If you want to take legal action to gain the German minimum requirements set out above, you can do so in the German labour courts. Legal action based on your employment contract, however, must in principle be brought in a court in your country of origin.

Social security law

If your posting is for a maximum of 24 months, you normally continue to be subject to the social security system of the sending country. Your social security coverage in the sending country is certified by an A1 form, which you can obtain from the social security institution you are registered with.

Health insurance is a special case: if you fall ill, you can also receive treatment in the country where you are posted (the host country). You should contact your health insurance fund in the sending country about this before your departure. Depending on whether you are only staying temporarily in Germany or whether you are making Germany your home, you must request either a European Health Insurance Card or an S1 form.

You need a European Health Insurance Card if you will only be staying in Germany temporarily. This will enable you to receive necessary medical treatment while you are in Germany.

You need an S1 form if you are making Germany your home. This means that you will be resident in Germany for an extended period: for example, if you move to Germany with your family for a long time. In this case, you should present your S1 form to one of the statutory health insurance funds in Germany. You and your family will then receive complete access to healthcare services in Germany.

Please note: It is not necessary to take out travel medical insurance for the time you spend working abroad.

You will also initially continue to pay taxes on wages in your country of origin. However, if you work in Germany for longer than 183 days, then you are only liable to pay taxes in Germany.

2. Cross-border workers

Cross-border workers are employees who live and work in different EU countries, but return to their place of residence at least once a week.

In principle, cross-border workers are subject to the social security law of the country where they work.
Special provisions apply in the case of:

Tip: If you are a cross-border worker who works in Germany, you are normally entitled to child benefit and other German family benefits.

3. Seasonal workers

Seasonal workers are employed by organisations which need a large number of workers for a short period at certain times of the year. They receive fixed-term employment contracts for this period.

Employees on fixed-term contracts may not be treated less favourably than comparable employees on permanent contracts. In addition, they must be treated in exactly the same way as German employees. This applies to working conditions, for example pay, termination of employment, working hours, holiday entitlement and public holidays, occupational health, and workplace safety.
In addition, seasonal workers are also entitled to the statutory minimum wage or any relevant sector-specific minimum wages.

Please note: In some cases, certain costs are deducted from wages. If you are not sure whether it is legitimate for certain costs for board and lodging to be deducted from your wages, you can find information about the maximum allowed deductions on the Customs website.

You are also entitled to child benefit in Germany if you are fully liable to income tax while you are working in Germany.

4. Au pairs

If you are an au pair in Germany, you are usually considered a worker for the purposes of freedom of movement for workers. You are entitled to free movement and benefit from employee rights. However, it is also possible for you to act as an au pair as part of a special type of childcare arrangement. In that case, you are entitled to free movement as a non-gainfully employed EU citizen with your own resources.

Certain factors indicate that an au pair is acting in the framework of a “special type of childcare arrangement” (Betreuungsverhältnis besonderer Art), rather than as a worker:

  • The au pair must be no younger than 18 and no older than 27.
  • The au pair’s stay is primarily intended to allow him or her to learn the language and improve his or her knowledge of German culture.
  • The au pair is included in the host family like one of the children for a fixed period of time.
  • The rules on each side’s obligations with regard to working hours, leisure time and the au pair’s allowance must be set out in writing and adhered to.
  • The au pair’s assistance with light housework and childcare, including babysitting, may not exceed 6 hours a day and 30 hours a week.
  • The au pair is entitled to at least one day off per week (which must fall on a Sunday at least once a month) and at least 4 evenings off per week.
  • In addition to providing free board and lodging, the host family must pay the au pair an allowance which does not exceed 260 euros per month.
  • The host family must give the au pair time off for language courses, to practise their religion, and to participate in cultural events and excursions,
  • and must pay 50 euros per month towards the cost of German language courses.
  • The au pair is entitled to 4 weeks of paid leave per year (or, if he or she is not staying with the host family for an entire year: 2 working days per full month).
  • The host family must take out insurance for the au pair which covers illness or accidents, as well as pregnancy or childbirth.

5. Self-employment

If you want to become self-employed in Germany, you can find a wealth of information on how to do so on the business start-up portal run by the Federal Ministry for Economic Affairs and Energy. In particular, the site provides an overview of the business start-up process, where you need to register, and a great deal of information, checklists and tutorials about setting up a business and self-employment.

The main special factors regarding self-employment in Germany are:

  • If you are going to work on a self-employed basis in the liberal professions (Freie Berufe), for example as a doctor, artist or architect, you do not need to register a business (Gewerbe). However, you should contact the relevant professional association (Berufskammer) in all cases and enquire whether there are any requirements you must meet to be authorised to practise your profession. As a member of the liberal professions, you need only apply for a tax number (Steuernummer) from the Tax Office (Finanzamt).
  • Special authorisation requirements also apply in the skilled crafts (Handwerk). For example, if you want to practise a regulated skilled craft, you will need an exemption (Ausnahmebewilligung) allowing your registration in the Register of Craft Businesses (Handwerksrolle). Depending on the legal form of your craft business, you may also be required to have a notary register your company in the electronic commercial register (Handelsregister).
  • Registering a business
    If you are setting up a business (Gewerbe), your first step must be to register your business with the competent Trade Office (Gewerbeamt). Which Trade Office is responsible depends on where your business is to be established, not where you live. You will have to pay a fee of up to 70 euros, depending on the region. You can find the competent Trade Office here.
  • Applying for a tax number
    You receive your tax number from the Tax Office, which is automatically informed by the Trade Office of the registration of your business. You will receive the application forms from the Tax Office by post; however, this takes 4 to 6 weeks.

    Tip: If you apply for your tax number in person at the Tax Office, you can significantly reduce the waiting period.

  • Invoices
    You are obliged to create an invoice for every job you carry out.
  • Tax return
    As a self-employed person, you are obliged to keep a record of all income and expenditure, and you must file an annual tax return (Steuererklärung) with the Tax Office, regardless of whether or not you have made a profit. If you fail to do so, the Tax Office will estimate your turnover and profit, which in certain circumstances can result in you having to pay large sums in back taxes.
  • Health insurance
    As a self-employed person, you also have sole responsibility for your health insurance.

Please note: If your position in a German company is categorised as and referred to as self-employment, but you are in fact an employee, this is a situation known as pseudo or sham self-employment (Scheinselbständigkeit).

If you are really in an employment relationship, the provisions for employees apply to you. Your employment relationship will continue to exist and you will be treated like an employee. There are legal consequences if the authorities or a court determine that you are employed rather than self-employed.

If you are self-employed but do not have an adequate income to support yourself or family members living in your household, you can receive benefits under Book II of the Social Code (Sozialgesetzbuch).

FAQ Special forms of work

If you are self-employed and are issuing an invoice, it has to include the following information:

  • the full name and address of your business,
  • the full name and address of the invoice recipient,
  • the place and date,
  • your tax number (Steuernummer),
  • the invoice number, i.e. one or more digits, letters or a combination of both which you assign as a unique identifier for that invoice,
  • the scope of the service or work,
  • the net sum being invoiced in euros,
  • value added tax (known as Mehrwertsteuersatz or Umsatzsteuer; it is normally 19 per cent) and the amount of tax in euros,
  • if you are exempt from paying value added tax (if your turnover is 17,500 euros or less a year), you should explicitly state that you are exempt,
  • the date by which payment should be received,
  • your complete and correct bank account details.

The question of whether you are working on a self-employed basis or as part of an employment relationship does not depend solely on which term is used in your contract, but rather on how your work is organised and carried out in practice. An employment relationship exists if one person (the employee) is engaged, in a relationship of personal dependence, to perform work on behalf of another (the employer) in accordance with instructions and without control of the work involved. The instructions involved can relate to what work is carried out how, when and where. Individuals are subject to instructions if they are not essentially free in determining their work and their working time. To identify whether an individual is employed rather than self-employed, it is essential to look at all circumstances on a case-by-case basis.

For example, the following criteria indicate that you are an employee:

  • You carry out instructions given by the other party to your contract,
  • You are unable to freely determine when and where you work,
  • Rather than having your own business premises, you work solely in the premises of the organisation in question, in accordance with the organisation’s work processes,
  • You only have one client,
  • You charge for your work by the hour.

If you are unsure whether or not an employment relationship exists, you should seek advice. This is important because it makes a big difference whether you are working as an employee or on a self-employed basis: if it turns out that you are actually an employee, your employer must pay arrears of the social security contributions (pension, long-term care, health and unemployment insurance) which would normally have been incurred. Usually, half of the social security contributions are deducted from the employee’s gross pay (employee contributions). You must bear this in mind if you claim employee status. However, your employer is only permitted to deduct the employee contributions for the last 3 months, at most.

In addition, as an employee you can retroactively claim the following rights regarding your employer:

A posting contract is not a separate employment contract; it merely supplements the existing employment contract by specifying how long the employee will spend working abroad.
The posting contract should also specify:

  • what duties the posted worker must carry out abroad,
  • who his or her supervisor will be,
  • the person to whom he or she will report,
  • where applicable, how much additional pay he or she will receive while working abroad,
  • whether the employer will meet or contribute to the costs of supplementary health insurance for the period abroad,
  • to what extent the employer will cover relocation expenses, travel expenses or accommodation costs for the employee and his or her family members, and
  • the continuation of the posted worker’s employment after his or her return.

The Customs Administration’s Central Information Unit provides general information on obligations to cooperate, submit notifications, keep records, or other obligations under the Minimum Wage Act (Mindestlohngesetz), the Posted Workers Act (Arbeitnehmer-Entsendegesetz) and the Act on Temporary Employment Businesses (Arbeitnehmerüberlassungsgesetz), compliance with which is monitored by the unit within the Customs Administration (Zollverwaltung) which is responsible for enforcing the law on illegal employment and benefit fraud. The Central Information Unit’s contact details are as follows:

Central Information Unit (Zentrale Auskunft)
Tel.: +49 (0)351 44834-510
Email: info.privat@zoll.de
Fax: +49 (0)351 44834-590

You can also obtain information from the Minimum Wage Hotline run by the Federal Ministry of Labour and Social Affairs, Tel.: +49 (0)30/60 28 00 28.

These two points of contact are not able to offer detailed advice on individual cases. If you need detailed advice because of a concrete problem, you can consult a lawyer. You can also contact the “Fair Mobility” advisory centres run by the German Trade Union Confederation (Deutscher Gewerkschaftsbund). Use our search tool to find an advice centre near you.
This project’s central contact point is based in Berlin:

Fair Mobility (Faire Mobilität)
DGB, Keithstr. 1–3, 10787 Berlin
Contact:
Dominique John
Email: mobilitaet@dgb.de
Tel.: +49 (0)30 – 21 240 540
Further information about the project is available online at:
http://www.faire-mobilitaet.de/en