Mindestlohn bei verstetigtem Arbeitsentgelt

With a stable wage that is in the range of the minimum wage, the question regularly arises as to how it can be ensured that the employees' minimum wage entitlement is met in every case.

From the point of view of cost optimization, companies are always careful to keep their administrative effort as low as possible. The hourly wage is therefore often calculated using a weekly factor in which this is stored in the respective billing system. For example, a weekly factor of 4.33 (resulting in 173.2 per month for a 40-hour week) is used to break the monthly salary down to the hour and thus check whether the minimum wage is paid. The reason for using a weekly factor is that a month has more than 4 weeks, but the employment contractual remuneration is owed monthly. Such a calculation would then look like this:

Example:

With a gross salary of €1,550.00, the hourly wage would be €8.95 (€1,550.00: 173.2 hours) based on a weekly factor of 4.33. The minimum wage of currently €8.50 would be adhered to.

Actual hours worked are crucial

However, the use of a weekly factor is legally irrelevant to the question of whether the minimum wage is actually paid or not. Because the minimum wage law (“MiLoG“) the amount of the mandatory remuneration is based on the remuneration per hour actually worked and the due period is based on the month, cf. § 1 para. 2 and § 2 para. 1 MiLoG.

The minimum wage entitlement is calculated from the sum of the hours actually worked in the calendar month multiplied by the respective minimum wage. It is therefore irrelevant which weekly factor is used to calculate the average working hours per month. The only thing that matters is how many hours the employee actually worked and what remuneration he received for them. It is therefore correct to look at each month separately. In particular, there are calendar months with 23 working days. It is particularly important to ensure that the minimum wage is paid. This should be illustrated using an example:

February (20 working days):

€ 1,550.00 gross/20 working days/8 hours results in an hourly wage of € 9,69.

Result: The hourly wage in February is above the legal minimum wage.

August (23 working days):

€ 1,550.00 gross/23 working days/8 hours results in an hourly wage of € 8,42.

Result: The hourly wage in August is below the legal minimum wage.

The use of a uniform weekly factor, on the other hand, serves to calculate a flat rate of remuneration per week, day or hour, without taking into account the actual working hours worked. A weekly factor is used, for example, for the purpose of breaking down the constant monthly salary to a flat-rate hourly wage, see for example Section 24 Paragraph 3 Sentence 3 TVöD.

In this respect, the main question is how to ensure that employees' minimum wage requirements are met.

Ensuring the payment of the minimum wage

From what has been described above, there are basically three options for ensuring the payment of the minimum wage:

The company changes the compensation to time-based hours. Such a regulation could be regulated in the employment contract for new employees. A corresponding mutual agreement would have to be made with “old employees”.

Furthermore, it would be possible to pay the gross wage on a consistent monthly basis, which would have to be paid in a month with 23 working days to meet the minimum wage. For example, with a 40-hour week and a current hourly wage of €8.50, a gross salary of at least €1,564.00 would have to be paid.

Another possibility would be to increase the monthly salary up to the minimum wage in the months in which the minimum wage would be mathematically undercut due to the large number of working days due to the above.

Summary

According to the MiLoG, there is no weekly or monthly factor that is to be used as a basis to determine the share of the fixed monthly salary that is allocated to an hour. The decisive factor is the hours actually worked and the remuneration paid for them. In order to ensure that the minimum wage entitlement is met, the remuneration system can be converted to time-based hours or a fixed gross monthly salary can be paid, which ensures that the minimum wage entitlement is met even in “long” months. Alternatively, in “long” months, the contractual remuneration could – if necessary – be increased to the minimum wage level.