The Employee Posting Act applies to employers in all industries insofar as working conditions are regulated by law. If the working conditions are regulated in collective agreements, however, employers based abroad are only obliged to comply with German collective agreement standards if these are also mandatory (through a declaration of general applicability or a legal ordinance) for all corresponding German employers. In the care sector (geriatric care and outpatient nursing), employers can be obliged by legal ordinance to comply with the working conditions proposed by a commission.
If employers based abroad employ workers in Germany for longer than twelve months (so-called long-term secondment), the employer is obliged to observe further regulations in addition to the working conditions to be observed for each employment. All working conditions regulated in legal and administrative regulations as well as in generally binding collective agreements then apply. The additional regulations must be observed from the day on which the employee has been employed in Germany for more than twelve months. The period from which the additional regulations apply to long-term employment in Germany can be extended to eighteen months. To do so, the employer must submit a notification to the customs authorities in accordance with Section 13b (2) of the Employee Posting Act (AEntG).
In addition, there is a binding lower wage limit in the temporary employment sector that applies equally to temporary employment agencies based in Germany and to temporary employment agencies based abroad that supply temporary workers to perform work in Germany.
Special features with regard to the applicable working conditions must be observed for drivers employed in Germany by employers based abroad; the Minimum Wage Act may apply here (see for further information).
Further information on the applicable working conditions can also be found on the homepage of the Federal Ministry of Labor and Social Affairs and on the homepage of the authorities of the customs administration responsible for monitoring the Employee Posting Act.
Furthermore, there are various obligations to be observed which serve to control compliance with the prescribed working conditions:
Registration and insurance
Insofar as working conditions in collective agreements are also applicable to employers based abroad by means of a declaration of general applicability or a legal ordinance, the following applies:
Employers based abroad who send one or more employees to Germany to perform work or services are obliged to register the employees with the competent authority of the customs administration in accordance with Section 18 (1) AEntG. Special regulations apply to drivers employed in Germany by employers based abroad, Section 18 (2) AEntG.
If workers are leased to a hirer by a hirer based abroad, hirers must submit a declaration to the competent authority of the customs administration in accordance with Section 18 (3) AEntG, Section 17b (1) of the German Personnel Leasing Act (AÜG).
Employers and lessors are to submit the declarations online using the customs administration's minimum wage reporting portal. Here, too, special rules apply to drivers employed in Germany by employers based abroad, Section 18 (2) AEntG.
Further information on registration and reporting changes can be found on the homepage of the customs administration authorities responsible for monitoring the Employee Posting Act.
Keeping records of working hours
Insofar as working conditions in collective agreements are also applicable to employers based abroad by means of a declaration of general applicability or a legal ordinance, these employers, like employers based in Germany, are obliged under Section 19 para. 1 AEntG, they are also obliged to record the beginning, end and duration of the daily working time of the employees and, insofar as hourly bonuses are to be granted, the beginning, end and duration of the working time which gives rise to an entitlement to a bonus, stating the respective bonus, at the latest by the end of the seventh calendar day following the day on which the work is performed, and to keep these records for at least two years from the time relevant for the recording.
Pursuant to Section 19 (1) Sentence 2 AEntG and Section 17c (1) AÜG, the same obligation applies to any hirer who has workers provided by a temporary employment agency, regardless of whether the agency is based in Germany or abroad.
Further information can be found on the homepage of the customs authorities responsible for monitoring the Posting of Workers Act.
Keeping documents available
Employers with their registered office in Germany and employers with their registered office abroad must keep the documents required for checking compliance with the working conditions under the AEntG and the AÜG in Germany and in the German language in accordance with Section 19 (2) AEntG and Section 17c (2) AÜG respectively:
- Employment contract, or the documents from which the essential content of the employment relationship is derived (Verification Directive, Official Journal of the EC No. L288/32 of 18.10.1991
- timesheets, which must differentiate according to place of employment if regionally different minimum wages come into consideration
- Wage slips
- Evidence of wage payments made
The four types of documents listed above must be kept available in Germany in any case. If additional documents are required, these must also be made available for inspection by the inspection authority without delay.
Insofar as employers wish to invoke working time flexibilization, further documents must be kept available in Germany in addition to the usual inspection documents:
- Written agreement on flexible working hours
- Compensation account (for each employee), if necessary separate hourly records for new federal states/old federal states
- Proof of security for the compensatory account (e.g. bank guarantee, blocked account), if required by collective agreement or legal ordinance.
At the request of the inspection authority, the employer must present the documents at the place of employment, in the case of construction work at the construction site.
Special provisions also apply with regard to the provision of documents for drivers employed in Germany by employers based abroad, Section 19 (2a), (b) AEntG.
Further information can be found on the homepage of the customs authorities responsible for monitoring the Posted Workers Act.