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Working while you sleep?

Working while you sleep?

Remuneration for on-call Services under the Provisions of the Minimum Wage Law.
(Federal Labor Court, decision dated November 19, 2014 – 5 AZR 1101/12)

The plaintiff was employed as a caretaker in one of the nursing homes run by the defendant. As well as nursing care, domestic care for patients needing that extra care also fell to the plaintiff. It is undisputed that the plaintiff worked full-time and rendered on-call services as well. Under an agreement in the employment contract, for on-call services the plaintiff received a lower hourly pay than laid down in the regulations on mandatory working conditions for the nursing care sector from October 15, 2010 (PflegeArbbV). In the complaint, the plaintiff requested compensation equal to the minimum hourly wage for the periods in which she was on-call.

The Federal Labor Court has now ruled that for the periods in which the plaintiff was on-call the she is entitled to compensation equivalent to the minimum wage, as set out in the PflegeArbbV. In §2 of the PflegeArbbV no express distinction is drawn between the different types of work. Therefore, the minimum wage has to be paid for all types of work. ‘Work’ thus encompasses both full-time employment as well as on-call services and the readiness to work. During all these times the employee is carrying out the work due under §611(1) of the German Civil Code. Work is not only the satisfaction of an external requirement; it is also the deliberate idleness arranged by the employer that prevents the employee from using his or her time freely. If by law a minimum wage is to be paid, the parties may conclude a contrary agreement regarding the periods of on-call services only if the law expressly permits this. Under the provisions of the PflegeArbbV – as they applied at the time of the decision – this was not the case.

Practical recommendations:
The decision is significant for all employers because of the Minimum Wage Law (MiLoG) that came into force on January 1, 2015. For nursing homes, the decision is of relatively little importance due to the revised version of the PflegeArbbV that came into force on January 1, 2015. For nursing homes, the possibility to conclude a contrary agreement for providing on-call services does now expressly exist under §2(3) of the PflegeArbbV. All other employers, however, are expressly prohibited by §3 of the MiLoG from doing this. In the future, on-call services must therefore be paid no less than € 8.50 per hour. Unfortunately, it cannot be determined from the new provisions of the PflegeArbbV if similar contrary agreements are allowed in other companies or operations. This would only be possible if it could be assumed that the legislature had simply forgotten to write a similar stipulation into the MiLoG. The fact that the legislature expressly authorizes an exception in the PflegeArbbV, but not in the MiLoG suggests rather that it has deliberately decided against writing an exemption clause into the MiLoG. Hopefully, the legislature will soon come up with something better.

By Viktoria Holm

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