Making employee leasing from abroad legally compliant

Legal basis of international labour leasing

The use of external personnel by means of temporary work is a flexible way of employing foreign workers in your company for a limited period of time. What do you need to bear in mind if you want to hire employees from abroad with legal certainty?

Many companies in Germany are dependent on being able to fill staff shortages with Skilled workers from abroad to remedy the situation. If there is only a temporary need for additional staff, employment as part of a temporary employment agency (temporary work) is an option.

When the Temporary Employment Act is applicable

The German Temporary Employment Act (AÜG) applies to the deployment of temporary workers in Germany. The rules laid down there also apply when foreign temporary employment agencies lend employees from abroad to Germany.

Authorisation for temporary employment required

In accordance with the AÜG, temporary employment agencies require an official temporary employment licence. Foreign temporary employment agencies that lend staff to companies in Germany also require a temporary employment licence issued by the relevant employment agency in accordance with German law.

The AÜG does not apply if the foreign temporary worker is lent to a German company but is only deployed at a location abroad.

Employment relationship between lender and temporary worker

The main characteristic of temporary employment is the Triangular relationship between lender, hirer and temporary worker. Temporary employment is characterised by the fact that the temporary worker

has an employment contract with the lender,
is transferred from the lender to the borrower,
is integrated into the hirer's work organisation and
is subject to the instructions of the hirer.

In the case of (lawful) temporary employment, there is therefore an employment relationship between the hirer and the temporary worker, not between the temporary worker and the hirer.

Conclude an employee leasing agreement

It is important in the case of temporary employment that a rLegally compliant employee leasing agreement is concluded between the lender and the hirer. This contract sets out the legal framework conditions for the hiring-out.

Observe the labelling and concretisation obligation

In addition, the AÜG contains a labelling obligation. Accordingly, the assignment of temporary workers must be expressly labelled as temporary employment in the assignment contract between the hirer and the temporary employment agency. This must be done before the temporary worker starts working at the company of assignment. In addition, the lender and hirer must specifically name the temporary workers before the start of the assignment.

This means: The existence of a temporary employment licence alone is not sufficient for a legally secure supply of temporary workers. The temporary employment must be designated as such from the outset and the temporary worker(s) must be specifically named.

Legal consequences of non-compliance with the labelling obligation

If a temporary worker is deployed by the hirer without this being expressly recognised as a Employee leasing the temporary employment contract between the lender and the hirer is invalid. In such a case, an employment relationship is generally established between the hirer and the temporary worker.

However, the temporary worker can prevent an employment relationship from being established with the hirer by declaring within a period of one month that he wishes to maintain the employment relationship with the lender.

Maximum transfer period

ccording to the AÜG, a temporary worker may be employed by the same hirer for a maximum of 18 consecutive months. If there are more than 3 months between two assignments of the same temporary worker with the same hirer, the calculation of the maximum assignment period starts from the beginning. If there are no more than 3 months between assignments of a temporary worker with the same hirer, the previous assignment is to be counted towards the maximum assignment period.

It is possible to deviate from the maximum assignment period by collective agreement. This means that the parties to the collective agreement in the deployment sector are permitted to agree on a maximum duration of temporary employment that deviates from the statutory maximum duration of temporary employment.

Entitlement to equal pay

Equal Pay means that temporary workers must receive the same remuneration as comparable permanent employees of the hirer after 9 months of uninterrupted employment at the latest.

A deviation in pay lasting longer than 9 months is only permitted if, by means of industry supplements - after an induction period of no more than six weeks - a gradual adjustment to the pay of the core workforce takes place and equivalent pay is achieved after 15 months at the latest.

Legally compliant temporary employment of skilled workers from Eastern Europe

You are looking for Skilled or unskilled labour from Eastern Europe as a temporary worker?

We, Temporary work internationalAs an experienced personnel service provider, we place workers from numerous sectors and support you in the legally compliant organisation of employee leasing. We also offer Recruitment and Subcontractor mediation and the Outsourcing complete areas or partial areas in the Contract for work or service contract.