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What are the Risks of Employee Misclassification in Germany?

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Atlas Team

Atlas helps innovative companies like yours to expand, onboard, manage and pay international teams in 160+ countries.

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Published: 24 Jan 2024

Managing a workforce across multiple jurisdictions is a complex task, and employee misclassification is a significant risk that affects every company. This challenge is particularly pronounced in Germany, where stringent laws and regulations govern worker classification.  

Misclassification can lead to severe penalties, making compliance a critical concern for businesses. 

In this guide, we delve into the intricacies of employee classification in Germany and discuss how an Employer of Record (EOR) service like Atlas can be instrumental in navigating these complexities.

What is the difference between a Contractor and an Employee in Germany? 

In Germany, employment contracts are typically categorized as either indefinite or fixed-term.  

The distinction between an employee and a contractor in Germany is crucial and often scrutinized in various legal contexts, including audits, investigations, and disputes over contract termination. 

Misclassifying an employee as a contractor can lead to significant legal and financial repercussions. Employers may be liable for unpaid social security contributions fines of four times the amount of social security withheld for up to four years, or even thirty years in cases of intentional misclassification.  

Additionally, company directors could face criminal charges, and the misclassified individual might claim permanent employment status. 

To avoid these pitfalls, German law allows both employers and contractors to seek a declaratory procedure from the competent authority to ascertain the worker's status.  

However, in ambiguous cases, the authority typically favors employee status, underscoring the importance of proper classification from the outset. 

Aspect Contractors in GermanyEmployees in Germany
Control Over Work High autonomy in deciding work methods and schedules Work directed and controlled by the employer, including specific work hours
Tools/EquipmentProvide their own tools and equipment Tools and equipment typically supplied by the employer
Integration in Company Generally operate independently, often remotelyDeeply integrated into the company's operations, often working on-site
Benefits EntitlementNo access to company benefits; responsible for their own tax obligations Entitled to various benefits like minimum wage, overtime, vacation pay, health insurance, retirement plans, and paid sick leave
Job Security Can be terminated at any time without notice or specific reasonProtected against abrupt termination, with notice periods and reasons required
Duration of Engagement Engaged for a specific project or a fixed duration Usually employed for an indefinite period, with long-term engagement
Risk and LiabilityBear more risk and liability for their work Generally shielded from liability for work-related issues
Exclusivity of Service Free to offer services to multiple organizations; not bound exclusively to one company Employers can forbid employees to provide services to another employer if it would violate the employer’s interest.
Nature of Relationship Less formal, with a focus on task completion Formal employment relationship with structured roles and responsibilities

The Penalties for Misclassifying Workers in Germany 

Misclassifying workers in Germany can lead to a range of penalties, including legal actions and substantial fines. These penalties vary depending on the nature of the misclassification: 

1. Employment Perspective: Unlawful labor leasing, where there is no direct contractual relationship between the worker and employer, can result in fines up to EUR 15,000 per violation.   

Additionally, profits gained from using workers as freelancers instead of employees may be confiscated. 

2. Tax Perspective: Intentional tax evasion related to misclassification can lead to fines of up to EUR 10 million. 

3. Social Security Perspective: Employers may be required to pay social security contributions retroactively for up to 30 years, with punitive interest rates of 12% per year. 

4. Pensions Perspective: Similar to social security, pension-related contributions may also be backdated for up to 30 years with the same punitive interest rate. 

Recent Developments in Contingent Worker Regulations 

The landscape for contingent workers in Germany is evolving. In 2021, the Federal Labour Court ruled a gig worker as an employee of a crowd working platform, significantly impacting current business models.  

Additionally, the Council of the European Union's recent agreement on a directive to protect platform workers marked a significant shift. This directive, expected to be finalized soon, aims to ensure proper employment status for platform workers and introduces rules for algorithm transparency. 

The EU has introduced a new framework agreement for social security concerning habitual cross-border remote working, effective from 1 July 2023. This agreement facilitates the free movement of people within the EU while safeguarding their social security rights. 

 

Hiring Compliantly in Germany with Atlas  

Navigating the complex landscape of employee classification in Germany can be daunting, but Atlas offers a comprehensive solution to ensure compliance with local employment laws.  

Our Employer of Record (EOR) service helps businesses to mitigate the risks of misclassification. By partnering with Atlas, you can confidently expand your global workforce in Germany, knowing that your employment practices align with local regulations. 

Understanding the differences between contractors and employees, staying abreast of recent legislative changes, and ensuring compliance are crucial for businesses operating in this jurisdiction.  

By adhering to best practices and leveraging expert guidance, companies working with Atlas can keep on top of employee classification and maintain a compliant, efficient, and productive global workforce. 

The Role of Technology in Compliance 

In the digital age, technology plays a pivotal role in ensuring compliance with employment laws. Advanced software solutions and digital platforms can aid businesses in managing their workforce more effectively.  

These tools can help in tracking work hours, managing contracts, and ensuring that all employment practices are in line with local laws. 

Atlas leverages cutting-edge technology to provide businesses with real-time insights and analytics, enabling them to make informed decisions about their workforce. 

As the landscape of employment law continues to evolve, staying informed and adaptable is key to maintaining a successful and compliant international business. 

Looking to expand your workforce in Germany? Contact us to learn more about how our Employer of Record services can help keep you compliant, whether you’re hiring full-time staff or contractors.   

 

Disclaimer: 

The information contained in this publication is intended for informational purposes only and is not intended to be construed as legal advice. The content is provided as updated at the time it was published only without any warranty of any kind, expressed or implied. Atlas is not a law firm and the material provided should not be used in lieu of professional legal consultation. It is recommended that readers seek legal advice from a qualified attorney or legal expert for guidance on any legal issues addressed in this publication. Atlas shall not be responsible for any damages or problems that may arise from the use of the information provided in this publication.