Minimum wage – doubts about applicability to foreign companies; client’s liability

Court expresses doubts as to scope of applicability of the MiLoG to foreign companies. Deutsche Post sued as customer for payment of minimum wage.

The number of lawsuits dealing with the General Minimum Wage Act (MiLoG) is increasing.

In a case before the Finance Court of Berlin-Brandenburg, which has received little attention so far, the court expressed doubts about the applicability of the MiLoG to foreign companies. The court refers to a decision by the Federal Supreme Court (BGH) from 2015. At that time, the BGH had already declared that it was unclear who was covered by the term “employees employed in Germany” according to § 20 MiLoG. The term may either (1) cover any activity, even for a short period of time, or (2) be linked to a specific definition of “employment” in social insurance law. It might even be possible (3) that only those employees who pay social security in Germany are covered. The scope of application of the law varies greatly, depending on the definition used.

The Finance Court has now announced ‒ in proceedings concerning a complaint by a Polish transport company against an examination order by the German customs authorities ‒ that it intends to deal with this question in detail and has therefore temporarily prohibited the customs authorities from carrying out the examination.

In another case, a Czech truck driver sued Deutsche Post AG for payment of the minimum wage for his work in Germany because his Czech employer had not paid him the full minimum wage. The lawsuit was based on the client’s liability according to § 13 MiLoG. Under this regulation clients are also liable for payment of the minimum wage. The proceedings were terminated without a judgment, because Deutsche Post allegedly paid the claim and thus settled the lawsuit.

The procedure shows how much attention clients should pay to their choice of transporter, as they always bear the risk of having to pay additional wages themselves. In addition, clients may also face heavy fines.

Source: Financial Court Berlin-Brandenburg, AZ: 1 V 1175/17 Labour Bonn, AZ: 3 Ca 1495/17

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