Short-time work:

Short-time work is a temporary reduction in normal working hours or a temporary reduction in the volume of regularly owed working hours with a subsequent return to the agreed amount of time (cf. BAG, judgment of November 18, 2015; Az: 5 AZR 491/14). In the case of short-time work, the employer usually reduces the working hours in his company for economic reasons or for other reasons that can lead to a significant loss of orders and work. As a result, considerable personnel costs can be reduced and the existence of the company can possibly be maintained. Short-time work can affect independent parts of the company or the entire company. The working time can be limited to a certain extent or to certain days or reduced to zero.

Section 95 ff. SGB II award the employee short-time work benefits for the period of short-time work in order to compensate for part of the reduced wages due to short-time work.

After the existing employment relationship, the employee has a claim against the employer for employment. In this respect, the employer cannot introduce short-time work without a special basis or without a corresponding agreement with the employee. The details of the effectiveness of regulations on the introduction of short-time work agreed in the form of forms in the employment contracts are very controversial. It is clear that a clause that gives the employer the opportunity to introduce short-time work at any time and without special requirements is invalid.

The works council has a say in even temporary reductions in working hours in accordance with Section 87 (1) No. 3. The works council's right of co-determination extends to the question of whether short-time work should be introduced and to what extent and for which employees. The works council does not have a right of co-determination if all necessary questions are conclusively regulated in the collective agreement, see Section 87 (1) of the Works Constitution Act.

Illness during short-time work:

If the employee falls ill and is unable to work during short-time work, the reduced working hours are decisive for the calculation of the wages to be continued for the duration of the short-time work. If the employee falls ill and is unable to work and short-time work is then introduced, the regular working hours are decisive for the continued wages to be paid. The situation is different if a future reduction in working hours was effectively agreed before the employee fell ill.

Obligations of the employer in the case of short-time work:

Even with short-time work (with the exception of short-time work zero), the employer has to fulfill his main obligations, namely employing the employee and paying the reduced wages. As a secondary obligation, the employer must also register short-time work and acknowledge the payment of short-time work benefits. The employee himself is not entitled to apply for short-time work benefits. Therefore, as a secondary obligation, the employer has the task of carefully applying for and paying out the short-time allowance in the interest of the employee. According to Section 320 (1) sentence 2 SGB III, the employer must also calculate and pay out the short-time allowance free of charge. Due to his duty of care, according to the case law of the Federal Labor Court, the employer is also obliged to calculate and pay the income tax correctly. In addition, employers have numerous reporting obligations to social security. For example, reporting obligations to the health insurance company according to § 198 ff. SGB V. The employer is also obliged to provide evidence and cooperation, for example according to §§ 312 and 313 SGB XIII (employment certificate, additional income certificate) or according to § 320 paragraph 1 and paragraph 3 SGB III (Obligations to record and provide evidence of short-time work allowance and winter allowance).

Avoidance of short-time work and dismissal through hiring out employees:

According to Section 1 (3) No. 1 AÜG, the employer can assign employees to a third party in the same branch of industry in order to avoid short-time work or layoffs. The employer does not require a permit for this. However, this provision presupposes that a collective agreement that applies to both the employer and the third party provides for such an option for hiring employees to avoid short-time work or dismissal.

Short-time allowance for temporary workers:

Due to the consequences of the Corona crisis, the legislator has introduced § 11 a AÜG, which is also intended to make it easier for temporary workers to access short-time work benefits in order to avoid redundancies. On March 25, 2020, the federal government issued a corresponding ordinance. The short-time work regulations can only be applied to temporary workers under special conditions. Section 96 (1) SGB III requires a significant loss of work. To determine this loss of work, it is not the hiring company (customer company) that is decisive, but the company of the temporary worker's employer. If short-time work was ordered in the hiring company, this does not mean that the temporary worker can also apply for short-time work benefits. However, short-time work benefits can be applied for if the short-time work introduced due to a significant loss of work in the customer company also has an impact, for example in the form of a significant drop in orders in the rental company, so that the requirements of Section 96 (1) SGB III are also met in the rental company.

Secondary employment during short-time work:

In principle, § 106 Para. 3 SGB III provides for full crediting of the remuneration earned from a secondary job during short-time work. Due to the special situation caused by the corona pandemic, temporary regulations were made by the Federal Government for taking up secondary employment in so-called systemically important sectors and professions, which, however, all ceased to apply on October 31, 2020 and December 31, 2020. According to the current legal situation, the employee must therefore fully offset all additional earnings against his entitlement to short-time work benefits during short-time work.

Short-time work and holiday entitlements:

According to the case law of the European Court of Justice, there is at least no entitlement under Union law to paid annual leave for periods in which the employee has not actually worked, since there is no abstract need for rest and relaxation on the part of the employee. This applies significantly to the cases of zero short-time work and parental leave, since it is foreseeable for the employee that he will actually not perform any work. The Federal Labor Court also adopted these principles developed by the ECJ in its judgment of February 19, 2019, Az: 9 AZR 541/15. The Federal Labor Court also confirmed its case law in the judgment of November 30, 2021, Az: 9 AZR 225/21. Working days lost due to short-time work must therefore be taken into account for the (re)calculation of the annual holiday entitlement in accordance with Section 3 (1) of the Federal Holidays Act.

Note: If the employer does not specifically request the employee to take vacation and if he does not point out clearly and in good time that the vacation would otherwise expire at the end of the vacation year or transfer period, the vacation entitlement remains in effect in the following year and is added to the vacation entitlement of the following year added.

If you have any questions about short-time work, contact our law firm and arrange one meeting

or call us on the phone number02366-94066 02.