Short-time work

Short-time work

Example case
Jiří has been working as a customer advisor for a tour operator for a year and was put on short-time work by his employer at the end of March because of the corona pandemic. The boss gave him an agreement to sign and said that he had to go on short-time work. If Jiří did not sign the agreement, he would be dismissed, he was told.
The agreement was not at all clear to Jiří: It said that he would work between 0 and 40 hours a week; it was not agreed for how long the shorttime work would apply. Jiří signed the agreement anyway, like all other colleagues. In the following months Jiří worked for different lengths of time: Sometimes only two hours a day, but on other days he had to work eight or more hours. In May he took a week off, with holidays in between. Jiří only received € 1,200 per month instead of the usual € 2,000. Jiří does not understand his pay slips: The contributions in addition to the items short-time allowance, holiday and public holiday are incomprehensible to him. After three months something happened that Jiří had not expected: He was given notice of dismissal. The reason given for the dismissal is “for operational reasons”. Jiří is very disappointed because he thinks that his boss has not kept his promises: Jiří’s job should have been maintained. Jiří finds the dismissal unfair and wants to do something about it. He now wants his entire wage and also wants to report that the boss paid him too little money. But who should he report it to?

1. Advice centre

Jiří goes straight to an Advice centre for foreign workers, which has also helped many of his friends with problems with employers. There are several such Advice centres across Germany:

Specific employment law Advice centres:

https://bema.berlin/en/

https://www.arbeitundleben.de/arbeitsfelder/beratungsnetzwerk

https://www.faire-mobilitaet.de/en

An overview of all Advice centres according to subject focus and language can be found here:

https://www.eu-gleichbehandlungsstelle.de/eugs-en/eu-citizens/searching-for-an-advice-centre

This advice service is free of charge. The advisers speak several languages and can examine Jiří’s working documents from a legal perspective and suggest specific possible solutions.

During the consultation, Jiří finds out more about short-time work: It is a measure to help avoid being dismissed. Employers who temporarily have not many orders coming in, such as Jiří’s employer currently because of the Corona restrictions, do not have to dismiss their staff immediately. Instead, they can temporarily reduce the working hours of the workers. When the order situation has improved again, the working hours can be increased immediately

If an employer wants to introduce short-time working, he/she needs the consent of the employee. Most of the time, consent is confirmed by a written agreement. Such agreements must be clearly worded so that there are no misunderstandings. The beginning and end of short-time work should be expressly specified. The agreement that Jiří has signed does not meet these requirements and it could be ineffective. One consequence would be that Jiří would have the full wage entitlement, also for the lost working hours. But that would have to be examined more closely from a legal point of view, for example by a specialist lawyer for labour law.

For the lost working hours, workers receive 60% of the lost wages (if they have children, 67%). This wage is also called short-time work allowance. In return, the employer receives a subsidy from the Federal Employment Agency. Jiří’s employer reports to the employment agency at the end of the month how many hours have actually been lost. This information must be truthful. During the holiday, Jiří must receive his usual full holiday pay. Jiří's employer also has to pay for the holidays himself, but only in the amount of the shorttime work allowance. 

By comparing the timesheets and the pay slips, the advisers determine that Jiří received too little money. They advise Jiří to take legal action for back payment. The exact steps were described in Chapter 2: Non-payment of wage.

Regarding Jiří’s dismissal: There is no prohibition on giving notice of dismissal during short-time work.

If the economic situation of the employer does not improve despite the application of short-time work and Jiří’s job is permanently lost, the employer can dismiss Jiří subject to certain conditions:

Jiří works more than six months in the company that has more than ten employees. He would then be covered by the statutory protection against dismissal. The Labour court can examine whether the employer’s dismissal is justified and social. If Jiří so wishes, he can take legal action against this dismissal in the Labour court. The advisers can prepare Jiří to take legal action against the dismissal.

Short-time work ends with the dismissal. The employer then still has to pay Jiří. According to the official statement of the BMAS, Jiří is entitled to full wages from the day of dismissal until the end of the notice period, regardless of whether he is still employed fulltime or not. Jiří should definitely continue to offer his labour after the dismissal, as agreed in the contract!

When receiving Unemployment benefit I (Arbeitslosengeld I), Jiří has no disadvantages due to short-time work; the unemployment benefit is calculated as if Jiří had worked full time.

2. Labour court

Jiří can submit the complaint orally to the Legal application office of the Labour court responsible. The jurisdiction of the court is generally based on the registered office of the employer. If Jiří worked in a place other than the registered office of the employer, he can also take legal action at the Labour court there. That is his choice. Jiří can find the locally responsible Labour court online:

https://www.gerichtsverzeichnis.de/verzeichnis. php

Jiří can fill out the claim forms and send them to the Labour court by post or fax. The complaint forms can be found on the websites of many Labour courts:

Jiří can find a sample of a protection against dismissal legal action in Annex XXI PDF, 519 KB, not barrier-free

The advisers at the labour law Advice centres can help you fill out the complaint form

Important! Jiří must submit the complaint to the court within three weeks from the date on which he received the letter of dismissal. After that, this is no longer possible.

If the Labour court finds that the dismissal was legally unfounded or socially unjustified, Jiří can keep his job.

3. Federal Employment Agency (Bundesagentur für Arbeit)

Since the advisers have found extensive discrepancies between the work timesheets and pay slips and therefore very likely an abuse of short-time work benefits, they advise Jiří to inform the Employment Agency about the facts and provide further evidence, e.g. to submit real timesheets. Preferably in writing by email or by post. Jiří can find the contact details of the local employment agency online:

https://www.arbeitsagentur.de/en/consultation-and-job-placement

This does not help Jiří to get the full salary, but it can lead to the employer being punished and counteracting similar behaviour in the future. 

If the circumstances indicate fraud, the Employment agency will forward the information to the public prosecutor. The investigators will initiate criminal proceedings if short-time work benefits have been wrongly drawn and a criminal offence has been committed. Jiří and his colleagues can then appear as witnesses in the proceedings.

If more hours have been worked than stated, the employer must expect a fine or even imprisonment. Further consequences can for example also be the future exclusion from public tenders. The employer is then no longer considered reliable under trade law.

As a rule, there is only a risk of criminal liability for the employer. There are exceptions, however, where the employees could be accused of being a helper in the offences. But that rarely happens in practice.

4. Financial control of illegal employment (FKS)

In Jiří’s case, there may also be a violation of the Minimum Wage Act, which can be punished as an administrative offence with a fine of up to € 500,000.

Jiří can therefore also forward the matter to the Financial control of illegal employment. The FKS is an authority that controls employers and, among other things, checks whether they are paying the social security contributions for the employees correctly. Jiří can find the address of the locally responsible FKS on the following website. All he needs is the postcode of the place where the employer has his company:

https://www.zoll.de/EN/Contact/Enquiries/General-enquiries/general-enquiries_node.html

Jiří can contact the FKS personally, file a complaint and make a statement. If that is not possible, he can also submit a message online:

https://www.zoll.de/EN/Contact/Enquiries/General-enquiries/general-enquiries_node.html