Labor law: The 24-hour care is wavering

Agencies place care workers from Romania or Bulgaria who care for old people at home around the clock. According to the Federal Labor Court, they too are entitled to a minimum wage. Can the model hold up?

Anyone looking for “24-hour care” on the Internet will quickly find it: many agencies are promoting the model. It is cheaper than a nursing home, and since the helper moves in with the person in need of care, she is also available at night. Many families in Germany do not know what to do better and fall back on this model in order to have a relative in need of care cared for.

In the past they mostly came from Poland; In the meantime, a woman from Romania, Hungary or Bulgaria often helps because the market in Poland has been swept empty. The women often come to Germany alternately with another carer for two to three months, move in with the person in need of care and are generally responsible around the clock – usually for a net wage of around 1,000 euros. Those who come from Poland are typically placed as self-employed. The women in the other south-east European countries are usually employed by an agency in their country.

Operations from 6 a.m. to 11 p.m.

Now this model is wavering. Because a Bulgarian nurse no longer accepted the fact that she had to work significantly more during her assignment in Germany from 2015 to 2016 than was stated in her Bulgarian employment contract. She went to court and was ruled by the Federal Labor Court. The judges made it clear that foreign nurses who are sent to a private household in Germany must earn the statutory minimum wage. This applies to every hour worked, including on-call duty, which occurs when the caregiver lives in the household of the person requiring care and is generally obliged to work at any time of the day or night if necessary.

The contract with the woman from Bulgaria said she had to work six hours a day and 30 hours a week. In fact, she moved in with a 96-year-old in a senior citizens’ residence and, according to her, was on duty every day for a long time, from 6 a.m. to 11 p.m. At night, she says, she had to leave the door open all the time so that she could hear the old ladies calling for help, for example, to go to the bathroom.

With the judgment of the Federal Labor Court it is now clear: The Bulgarian must be paid according to the statutory German minimum wage. However, since it was unclear how many hours she actually worked full time or was on call, the judges referred the case back to the lower court. There it must also be clarified how much free time the Bulgarian had. However, according to the judges, it is not far off that she had to work more than 30 hours a week.

Nobody is allowed to work continuously around the clock

Many in Germany believe that round-the-clock care is legal, perhaps also because they imagine that the law in the home country of women allows such employment contracts. In fact, it’s not legal. The law on the posting of workers applies to the helpers who are employed by a company in their country. Therefore, when working in Germany, German regulations must be observed: For example, a minimum wage must be paid, and the rules on working hours must also be observed.

A round-the-clock deployment including night standby is not permitted for any long-term employment relationship in Germany. For those who come as supposedly “self-employed”, the question of bogus self-employment arises because they can neither determine the time nor place of the respective assignment. So this model is also highly questionable from a legal point of view.

“Systematic breach of the law”

“The so-called 24-hour care model”, says Sylvia Bühler from the federal board of the service union ver.di, “is based on a systematic breach of the law”. That has been known for a long time. The judgment of the Federal Labor Court in Erfurt could now possibly contribute to the fact that it is no longer worthwhile for the agencies involved to place women from Eastern Europe as helpers. Because it will be too expensive for them.

It is quite possible that the example sets a precedent and that other women will also go to court. So far, however, a helper had never dared to complain. They fear that they will never be placed again, says Justyna Oblacewicz from the “Fair Mobility” project of the German Federation of Trade Unions (DGB). The plaintiff, however, could take the risk. She is now retired and no longer dependent on mediation.

There are alternatives

Church organizations are already trying to offer alternatives: “Carifair” from Caritas or “Faircare” from Diakonie Baden-Württemberg. However, these offers are still only available in individual regions of the republic. Both organizations provide detailed advice on how care can be organized and take on the administrative work if the helpers are employed directly by the family. They make sure that the weekly working hours for the helpers are adhered to and offer multilingual interlocutors nearby so that conflicts can be resolved quickly.

However, there is no round-the-clock service there. The whole thing then works more like a modular system with further help from outside – and is therefore significantly more expensive for those in need of care.