Minimum wage for 24-hour staff - what to do?
Nursing staff are in demand like never before. Whereas a care home was often the only solution in the past if there were no relatives around, outpatient care is now often provided by 24-hour staff, mostly women from Eastern European countries. Around 300,000 people in Germany are cared for in this way.
Care insurance follows the principle of "outpatient before inpatient" and has recently largely adjusted the benefits for home and fully inpatient care. This was very attractive for users of 24-hour staff. Now a recent ruling by the Federal Labor Court (BAG) is shaking up this successful model.
24-hour care: an important pillar of care
24-hour care is an important addition to outpatient care and an alternative to a care home for many people, says eldercare expert Jürgen Griesbeck. "Especially now during the coronavirus pandemic, the conditions in care homes are very difficult: people who want to visit relatives often still need an appointment, have to get tested and can only spend a limited amount of time there. Many people are therefore happy if their relatives can be cared for at home, as this offers them better opportunities for visits and support."
However, the term "24-hour employee" is misleading. Even an on-call employee may not work around the clock; the provisions of labor law also apply to them. Neither one day off per week nor daily rest periods can be converted into on-call time.
Minimum wage also for on-call times
A ruling by the Federal Labor Court in July 2021 has now caused a stir. The case was brought by a Bulgarian care worker . She was required to be on call around the clock, although her contract only stipulated working hours of 30 hours per week, for which she was paid. She sued for back pay for the work performed in accordance with the German Minimum Wage Act.
The Berlin Regional Labor Court ruled in her favor and awarded her back pay of more than 38,000 euros. The Federal Labor Court overturned the ruling because the working hours could not be proven in detail. However, it ruled that the minimum wage must be paid for 24-hour care - even for on-call times.
Law only with the new government
Even if a corresponding law is not expected until the next legislative period under the newly elected government, the ruling will have consequences. "For relatives who currently employ 24-hour staff, the ruling raises a number of questions. For example, there is the question of a possible claim for back payment from their care workers, as wages must be paid back up to three years after the employment relationship. There is also the question of what impact the ruling will have on contracts that have already been concluded," says Griesbeck.
24-hour care - what's important now
Taking the legal route
Presumably only 10 to 20% of 24-hour staff in Germany are employed legally; there is a lot of undeclared work or marginal employment. Users and providers are therefore taking a big risk: Anyone caught not only has to expect a fine, but also substantial additional payments, as this is judged by the courts as an "illegal attempt to circumvent the law". If additional payments are due from caregivers who have been placed through agencies, it is the agencies and not the people in need of care or their relatives who have to make the additional payments.
Determine the need for care
Often, caregivers do not have to be on duty all the time anyway. You should therefore think carefully in advance about what daily assistance the elderly person concerned actually needs. Also: Is it more about domestic care, personal hygiene, presence or night duty? The more you are clear about this, the better you can decide whether you can create a better and tailor-made solution with a mix of different providers. After assessing your needs, you will also know whether the 24-hour caregiver is only needed for six or eight hours a day. In this case, the rest of the time is free and you do not have to pay for this time.
Accurately document actual work performed
It is essential to keep a timesheet of the hours worked (daily, weekly, monthly), which is signed off by both parties. This allows you to quickly see whether the actual and agreed working hours still match or whether adjustments need to be made. This may cost a little more, but you will avoid unpleasant surprises and dissatisfaction.
Clarify employment relationship with caregiver
There are several ways to employ a caregiver. Firstly, the family can employ them directly. This saves on placement fees, but the family must fulfill all obligations as an employer. We recommend seeking advice from the employment agency, consumer advice centers or the pme Familienservice.
On the other hand, there is the so-called agency model via the Posted Workers Act. Here, nursing staff work as freelancers with a German trade license or as "employee-like self-employed persons". This costs a little more, but all legal risks are borne by the placement agencies. In any case, the A1 certificate for pension insurance must be submitted.
Check alternatives
In addition to 24-hour staff, there are now special care models (residential groups, day care) and care services from civic engagement via various service providers based in Germany, as well as affordable on-site care for the elderly. Aids from the field of ambient assisted living can also provide good support.
pme Familienservice advises on alternatives for 24-hour care
Regardless of what happens with the regulations for 24-hour care, there are also other options. "At pme Familienservice , we have always been committed to finding intermediate solutions," says Jürgen Griesbeck. "Our approach is very broad, 24-hour care is just one segment among several." For example, pme Familienservice puts togetherindividual care arrangements that can consist of a combination of voluntary work, outpatient services and private caregivers - supported by technical aids and home emergency calls.
"There is always more than just one solution. My recommendation for employees of our client companies and their relatives: Let us advise you, we will find the right care arrangement for you. And, of course, we are also the point of contact and advocate for our customers when it comes to the conditions of 24-hour care".
Jürgen Griesbeck, Homecare Eldercare Manager at the pme Familienservice
