Hidden temporary employment: Legal aspects explained

What is a concealed temporary employment agency?

In principle, the concealed Employee leasing fulfil all the characteristics of temporary employment. In addition, however, it must also be the case that the assignment of external personnel is incorrectly labelled as a work or service contract.

Fälle von verdeckter Arbeitnehmerüberlassung liegen vor, wenn:

the temporary employment is carried out without first obtaining the necessary authorisation
Angebliche werkvertragliche Arbeiten von Mitarbeitern durchgeführt werden, die ein Arbeitgeber oder Personnel service provider deployed with a customer
The Temporary workers is integrated into a customer company like the regular employees
The employer assumes the right to issue instructions to the temporary worker and not the actual employer

In the past, some personnel leasing companies already had a temporary employment licence just in case they were investigated for covert, i.e. illegal, temporary employment. This was called a provisional permit and was valid until 31 March 2017.

What are the changes in the course of the labour leasing reform?

As of 1 April 2017, the legal situation has changed and new rules apply to the Temporary Employment Act. According to these new rules, the hidden hiring out of employees is considered illegal. It is now mandatory for the lender and hirer to sign an employment contract when hiring out temporary workers.

Here it is important that the contract is labelled as a temporary employment contract in accordance with the regulations. In addition, the employer's name must be documented in writing prior to the assignment. It is not legal if an addition is made at a later date.

What are the legal consequences and sanctions for concealed temporary employment?

It is therefore possible that the temporary employment is not labelled as such. Or it may be the case that either the lender or the hirer violates the labelling and specification obligation. In this case, the Employment contractThe employment contract concluded between the temporary worker and the temporary employment agency is legally invalid.

There is only one exception here. This applies if the person concerned Employees wishes to maintain the employment relationship even though the law has been violated. If this is the case, which does not normally occur in practice, an employment relationship is established between the hirer and the temporary worker. It should be pointed out once again that a provisional licence for commercial temporary employment will no longer help the temporary employment agency.

It is also important to know that violations of the ban on concealed work permits can even be punished with a fine of up to 30,000 euros in individual cases.

Furthermore § Section 15 of the Temporary Employment Actthat the hirer must expect a fine and a prison sentence of between three and five years if he employs foreign workers without the appropriate authorisation. This applies equally to the hirer and the lender.

Conclusion

In principle, the employee bears the responsibility to present and prove the facts that establish an employment relationship with the hirer in accordance with § Section 10 (1) sentence 1 AÜG justify the claim. However, the burden of presentation and proof can be graded according to the principles of the secondary burden of presentation. This applies in particular if the employee does not have direct access to the relevant information and cannot determine the facts of the case more precisely despite all efforts. In such cases, the opposing party, who is aware of the relevant circumstances and can reasonably be expected to provide more detailed information, must not simply dispute the employee's allegations, but must provide concrete evidence of the facts that contradict them.