The corona crisis is having a significant impact on the economy and the labor market. While some companies are having to impose short-time work on their workforce to avert greater damage to their business, there are other areas in which (urgently) needed workers are in short supply.
One example of this is the asparagus harvest. Normally, many seasonal farm workers come from abroad every year to work for German asparagus farmers. Due to the travel restrictions imposed due to the corona pandemic, however, they are unable to travel and therefore cannot work.
Regulations on staff leasing liberalized
In addition to the possibility of introducing short-time work, the Federal Ministry of Labor and Social Affairs has now also introduced legislation to make it easier for companies to hire out staff without requiring a permit by relaxing the regulations on staff leasing. This means that employers may be able to avoid short-time work and deploy their employees in other companies.
This regulation is based on the current law. This states that no permit is required for the “occasional supply of temporary staff, provided the employees were not hired for the purpose of employing them as temporary staff”. However, the condition “occasional” has been interpreted so strictly that this exception has so far not played any practical role.
According to information on the website of the Federal Ministry of Labor and Social Affairs, the Ministry has now published (new) guidelines for the interpretation of Section 1 (3) no. 2a of the German Law on Labor Leasing (AÜG) due to the corona crisis, which include a relaxation of the requirements in order to make it easier to hire out employees.
Criteria during the corona crisis
Criteria for facilitated staff leasing during the crisis are:
- The employee has agreed to be hired out and was not hired or employed for the sole purpose of being hired out.
- The employer does not intend to provide staff to other companies on a permanent basis.
- Staff leasing is restricted to the duration of the crisis.
Here too, however, it is important to note that, pursuant to the interpretation guidelines, the principles of equal pay and equal treatment must continue to be observed, even if, in our view, this has not yet been expressly stated in the law. Accordingly, the leased staff would have to be treated in the same way as the regular employees of the company that leases them.
Hiring out employees to companies in the construction industry continues to be prohibited.
Staff leasing to avoid short-time work or redundancies
Section 1a of the German Law on Labor Leasing also includes the possibility of personnel leasing without a permit for small businesses in order to avoid having to impose short-time work or lay off staff. If the requirements are met, it is sufficient to notify the Employment Agency of the personnel leasing.
The requirements for this are:
- No more than 49 employees
- Goal is to avoid short-time work or redundancies
- Staff leasing for a maximum duration of 12 months
- Employee must not have been hired for the purpose of employing them as temporary staff
- Employment Agency must be informed about each employee who is hired out
WINHELLER provides consulting services to employers
If you as an employer are affected by the corona crisis and are looking for legal advice on various options, we will be happy to assist you. You can contact us via e-mail or telephone (+49 69 76 75 77 80).