Withholding wages and salaries (undeclared work)

Withholding wages and salaries (undeclared work)

Customs is responsible for combating undeclared work, among other things. Employers are essentially liable to prosecution under Section 266a of the German Criminal Code (StGB) for withholding and embezzling pay. As a rule, wage tax is also evaded.

The responsible customs department, the Financial Control of Clandestine Employment (Finanzkontrolle Schwarzarbeit, FKS), checks in particular the sectors listed in Section 2a of the German Act to Combat Clandestine Employment (SchwarzArbG), for example the construction industry, the restaurant and accommodation industry/catering trade, the passenger transport industry (cab companies), the building cleaning industry and the security industry.

On the one hand, undercutting the minimum wage is an administrative offense (Section 21 of the German Minimum Wage Act (MiLoG), Section 23 of the German Employment Act (AEntG)), but it also leads to criminal liability for withholding and misappropriation of pay under Section 266a of the German Criminal Code (StGB). The statutory minimum wage is affected, but also minimum wages from collective agreements declared to be generally binding.

The social security contributions relevant under criminal law are not calculated on the basis of the actual wage paid, but on the basis of the legally owed minimum wage. If the minimum wage is undercut, social security contributions are reduced as a result. The employers affected are therefore threatened with very high fines (which are intended to skim off the savings from the undercutting of the minimum wage) and severe fines or even imprisonment.

The distinction between self-employment and dependent employment also poses risks, particularly for employers. If bogus self-employment is established retroactively, there is a risk of high additional payments of social security contributions and possibly criminal prosecution for withholding and misappropriation of remuneration. The case law of the Federal Social Court (BSG) provides basic principles and criteria for assessing pseudo self-employment:

• Status characteristics: The BSG considers various aspects to assess the status of an employment relationship, such as personal dependence, integration into the employer's work organization and being bound by instructions.
• Entrepreneurial risk: The existence of an own entrepreneurial risk is an important criterion. If the person in question cannot make any entrepreneurial decisions and is economically exclusively dependent on the client, this speaks against an independent activity.
• Autonomy and degree of organization: The BSG also takes into account whether the person organizes his or her activity autonomously and independently. A clear organizational and economic autonomy tends to indicate self-employment.
• External comparison: The court often uses a comparison to a typical dependent employment to assess the status of the activity. If the activity resembles a normal employee relationship, this may indicate pseudo self-employment.
• Overall assessment: The BSG takes into account all relevant circumstances of the individual case in its overall assessment. There is no rigid criterion that is used in every case to distinguish self-employment from dependent employment. Rather, all factors must be taken into account.