Short-time allowance for trainees, working students and mini-jobbers

In the given situation, short-time work is the means of choice of many employers to achieve a short-term reduction in costs. While for regular employment relationships the basic conditions for the application of short-time allowance should be generally known by now, questions continue to arise for special groups of employees; particularly, apprentices, working students and so-called “mini-jobbers” as well as newly hired employees who start working short-time immediately. 

For these groups of employees, one may also consider alternatives to short time work.

In principle, employees are entitled to short-time allowance if

1. There is a considerable loss of working hours including loss of pay,

2. the operational requirements are fulfilled,

3. the personalrequirements are fulfilled and

4. the work loss has been reported to the Federal Employment Agency (BfA).

In the above-mentioned employee groups, the personal requirements deserve special attention.

The personal requirements for the approval of short-time allowance are based on Sec 98 of Book III of the Social Code (SGB III). Accordingly, short-time allowance can only be claimed for employees who have not been laid off and whose employment is subject to compulsory insurance. Only the compulsory insurance according to Sec 27 SGB III, in other words the prior contribution to unemployment insurance, is decisive.

Mini-jobbers and working students

However, such an insurance obligation does not exist for marginal part-time employees, so-called mini-jobbers. Working students are also exempted from the obligation to be insured in unemployment insurance according to Sec 27 para. 4 SGB III. They belong to the group of individuals who are exempted from insurance, even if they pursue an occupation that is otherwise subject to social insurance contributions while studying. 

The scope of application of Sec 98 para. 1 No. 1 SGB III is not applicable to precisely these employees, in other words the short-time allowance cannot be filed for mini-jobbers and working students. Especially for mini-jobbers, exemption from insurance exists solely because of earnings below the limit of EUR 450. The daring idea of some companies to increase the pay of mini-jobbers to at least EUR 451 immediately before applying for short-time work in order to make insurance compulsory and thus to receive short-time allowance for these employees as well, not only seems questionable, but must also be treated with caution for reasons of abuse of rights.

As an alternative to short-time work, mini-jobbers should be given more flexible working hours. In this way, with the agreement of the employee, the working time can be moderately distributed in such a way that the work performance is shifted from the period of work loss to the phase in which there is an increased demand for labor again. However, there are limits to this approach. A kind of long-term working time account contradicts the nature of regular marginal employment. 

Apprentices

For apprentices, the situation is fundamentally different. They can receive short-time allowance under special conditions. Before granting the short-time allowance, however, the company must have done everything possible and reasonable to continue the apprenticeship of the employees concerned. This includes, for example, changing the training plan or placing the apprentices in another department. Due to the low pay of apprentices, they must be particularly protected. The apprentice is initially entitled to continued payment of the full training remuneration for six weeks or 30 working days. Only after this period short-time allowance for apprentices may be granted.

New Hires

In general, an employment that is (i) subject to the compulsory insurance and (ii) existed before the beginning of the work loss is conditional for the approval of short-time allowance. Employees who are hired only after the start of short-time work are not entitled to short-time allowance if the work loss could have been avoided by not hiring. An exception is made if there are compelling reasons for starting work during short-time work or if the employment contract was already signed before March 11^th2020. 

In this case, it is recommended to postpone the contractual start of work or to adjust the agreed hours to the actual capacity required.

Conclusion

At the moment, short-time allowance cannot be claimed for mini-jobbers and working students. Even a seemingly clever bypass of this rule will in most cases rather harm than benefit the companies. When employing apprentices and before hiring new staff, primarily the loss of works needs to be compensated by internal changes before an application for short-time allowance is made. 

By Dr. Tobias Brors, LL.M. and Anne Pellowski