Der gesetzliche Mindestlohn – was kommt auf sie zu?

For the first time, a statutory minimum wage applies in Germany from January 1, 2015 with the Minimum Wage Act. This is intended to ensure an appropriate minimum wage for employees. According to the federal government, around 3.7 million people will benefit from this. Compliance with the minimum wage is monitored by customs. An additional 1,600 new employees will be responsible for this in the future.

The scope of application of the Minimum Wage Act basically extends to all employees. However, freelance service and work contracts are excluded from the scope of application. In these contractual arrangements, the client's general contractor liability, based on the Posting of Workers Act, is intended to ensure that the employees employed by the contractor or service provider receive the minimum wage. In addition to the contractor or service provider, the client is liable for the employees' claims to a minimum wage like a guarantor who has waived the defense of advance action.
In principle, interns are also subject to the minimum wage law. The federal government would like to end the “internship generation”. However, there are numerous exceptions for internships that are not based on an employment contract and only last for a limited duration. The minimum wage does not have to be paid if

the internship is mandatory due to a school law provision, training regulations or a university law provision,
up to a maximum of three months for orientation for vocational training or for starting a course of study or
is carried out as a voluntary internship of a maximum of three months (several internships must be added together) in addition to vocational or university training with content related to the respective training.

It is important that the statutory minimum wage also applies to minor employment relationships. The statutory minimum wage must also be paid for the so-called 450 euro jobs from January 1, 2015. The Minimum Wage Act also introduces extensive documentation requirements for these employment relationships regarding the “start, end and duration of daily working hours”. These records are required to be retained for at least two years.
Another significant exception to the scope of application of the Minimum Wage Act is trainees, voluntary workers and young people under the age of 18 who have not completed vocational training. The latter exception is intended to prevent weak school leavers from completing training by taking an unskilled job. Holiday jobs for students are therefore generally not subject to the minimum wage law. Finally, the Minimum Wage Act is not applicable to employment relationships that have not existed for 6 months if the employee has previously been unemployed for a year or longer. Another industry-specific exception applies to newspaper deliverers.
The minimum wage is €8.50 gross “per hour”. This refers to the gross hourly wage including all statutory deductions. If no hourly wage has been agreed, but a different time unit (e.g. a monthly wage), this must be converted. The agreed gross monthly remuneration is divided by the individual regular monthly working hours of the employee concerned in hours and then results in the relevant gross hourly rate. By June 30, 2016, a minimum wage commission must decide for the first time on an increase in the minimum wage as of January 1, 2017. Thereafter, the minimum wage will be reviewed every two years.
There is considerable potential for dispute over the question of which benefits should be taken into account when calculating the minimum wage. Much is unclear in this regard. The decisive factor in taking employer benefits into account when meeting the minimum wage requirement is that they are actually and irrevocably paid to the employee on the monthly due date. The widespread flexibility reservations (in addition to revocation reservations, in particular voluntary reservations and repayment clauses) are likely to exclude a minimum wage-effective classification. Bonuses such as vacation and Christmas bonuses are also not taken into account when calculating the minimum wage. Proportional consideration of these special benefits was considered in the legislative process. However, this was not included in the adopted version of the law. Wage structures with special benefits will therefore no longer make sense in the low-wage sector in the future.
Commissions and comparable performance-related payments must also be taken into account when calculating the minimum wage. The problem, however, is that these payments can fluctuate significantly. In principle, the Minimum Wage Act provides for a maximum period of two months during which the statutory minimum wage must be achieved on average. However, the literature suggests that this period can be extended to up to four months for commissions and comparable performance-related payments.
An agreed performance wage must also correspond to the minimum wage. The respective monetary factor must be calculated in such a way that the amount of the minimum wage per hour can be achieved for “normal performance”. A newspaper delivery person, for example, must be able to deliver so many newspapers during his regular working hours in the early hours of the morning that the legal minimum wage is achieved if paid per piece distributed.
It is also controversial whether allowances and surcharges are paid in accordance with the minimum wage. This applies, for example, to overtime pay, bonuses for Sunday work and holiday work and hazard pay or dirt pay. According to the prevailing opinion so far, these payments should not be taken into account when calculating the minimum wage. In this respect, however, clarification from the labor courts remains to be seen.
Expenses and travel costs must not be taken into account in any case, as these have no direct connection to the employee's work performance. Tips are also not to be taken into account if they are paid directly by the guest (as is usually the case) and are not first collected by the employer and then passed on to the employees as an allowance.
Violating the minimum wage law has significant consequences. Initially, such a violation can be punished as an administrative offense with a fine of up to €500,000. Certain violations can also lead to temporary exclusion from public contracts. The employee always has the right to sue the employer for the difference to the statutory minimum wage in a labor court.
The legal minimum wage is essential. Agreements that are less than the minimum wage requirement or that limit or exclude its enforcement are invalid. The employee can only waive the minimum wage claim through a court settlement; otherwise, waiver is excluded. Even the forfeiture of the claim was excluded by the minimum wage law. Limited exceptions only apply to collective agreements that have been declared generally binding until December 31, 2017 or are mandatory under the Posting of Workers Act.