The term employer is not intuitively plausible, since in the employment relationship the employee makes his work available in return for payment - the “employee” gives his labor , the “employer” gives remuneration .
The origin of the term does not derive from the wage employment relationship, but from the terms “employee” and “employer”, which in early modern Austria of the 18th century characterized the relationships between employers and servants : to serve the master was a grace that Subordinate was granted - the Lord gave up the service, the subordinate accepted the service. With the emergence of a capitalist industrial society , the terms changed and were also used to denote the wage employment relationship. They found their way into legal sources and ordinances in German-speaking countries in the middle of the 19th century in the form of the corresponding pair of words employer and employee . The German dictionary of the Brothers Grimm from 1854 defined the employer as someone “who lets work for himself, orders and pays for the work”. However, the word “employer” is said to have found broader use as a term only around 1890. In 1883 Friedrich Engels wrote in the foreword to the third edition of the capital :
- "It could not occur to me [...] to introduce the common jargon [...] in which, for example, the person who lets others give them their work for cash payment is called the employer, and the employee is called his Work is taken from him for wages. In French, too, travail is used in ordinary life in the sense of 'occupation'. But the French would rightly consider the economist crazy who wanted to call the capitalist donneur de travail and the worker receveur de travail. "
The demarcation to the employee has always concerned the legislature , the specialist literature and the case law. A demarcation is necessary because the classification of a person as an employee or employer has far-reaching legal consequences . This already begins with the legal question of whether someone is subject to the instructions of another through the right of direction or not ( labor law ) or whether he earns income from non-self-employed work or income from self-employed work or income from commercial operations ( tax law ).
The status of an employer is different from the status of an entrepreneur. An entrepreneur can also be someone who has no employees (such as a commercial agent ); An employer can be someone without being an entrepreneur (a retiree employs domestic staff ). The resident doctor is self-employed, but not an entrepreneur, because the practice of medicine is not considered a trade ( GewO ), but he can be an employer of medical assistants . Normally, however, the employer is also the company owner and labor law is the company's internal law .
Self-employment presupposes that it is neither a matter of “ employee-like persons ” ( e.g. HGB; single-company commercial agent) or TVG ( freelancers for radio and television companies who are economically dependent and comparable to an employee in need of social protection) or home workers or house traders ( HAG ). Freelancers carry out scientific, artistic, literary, teaching or educational activities independently, such as the independent professional activities of doctors, dentists, veterinarians, lawyers, notaries, patent attorneys, surveyors, engineers, architects, commercial chemists, auditors, tax consultants, advisory economists and business economists, sworn in Auditors, tax agents, alternative practitioners, dentists, physiotherapists, journalists, photo reporters, interpreters, translators, pilots and similar professions belong ( (1) No. 1 EStG ).
An employee is someone who, on the basis of a private-law employment contract in the service of another, is obliged to perform instructions-bound, externally determined work in personal dependence and is integrated into an external work organization . For freelancers is professionally independent people with a service contract within the meaning of BGB. The rules of labor law do not apply to them.
In German labor law , the employer is someone who can demand the work of the employee by virtue of an employment contract and who owes the wages . The employer position is largely shaped by the right of direction , by virtue of which the employer can define the specific performance obligation of the employee in terms of type, place and time.
Legal definitions can be found, for example, in (3) ArbSchG or (2) AGG . Pursuant to Section 2 (3) ArbSchG, employers within the meaning of this Act are “natural and legal persons and partnerships with legal capacity who employ persons ...”.
In order to make the crucial importance of the employment contract assignment clear, one also speaks in part of the contract employer. This is done in distinction to a non-contractual employer term in variants such as actual employer , indirect employer or specific employer , etc. The talk of employer functions and their distribution is rather misleading, in any case it does not change the fact that the employer is the employee's contract partner.
The relevant Federal Labor Court (BAG) does not define otherwise in the matter:
“The employer is that part of the employment relationship that can demand the service from the employee by virtue of the employment contract and thus has the economic and organizational authority to dispose of the work performed by the employee and the benefit from it. In this respect, it depends on the will of the parties, which can be identified in the individual case. "
It is important that, contrary to the definition of the BAG, it does not matter “who has the economic and organizational authority to dispose of the work performance of the employee and the benefit from it”. Clear counter-example is the case of so-called temporary workers , in which the intermediary is indeed work contractors and employers, but the borrower has the economic etc. Dispositionsbefügnis about the work performance of employees.
It is also common to define the employer as the one who employs at least one employee. This, too, is misleading, since the term “employed” is unclear, in any case does not mean actual employment and, in the case of temporary employment, is carried out by the hirer who is not the employer with an obvious superficial economic approach.
Need for an employment contract
- Contract theory versus inclusion theory
According to the integration theory, an employment relationship can also be established through mere integration. This opinion is now considered overcome. What has remained is the prevailing view in case law that integration is a characteristic of the employment relationship. However, this does not concern the question of justification, but rather that of the qualification of a legal relationship .
In exceptional cases, an employment relationship can be established by law against the will of one of the parties involved, including:
- automatically in the event of a (partial) transfer of business if the employee does not object ( BGB );
- automatically in the case of unauthorized temporary employment ( AÜG );
- at the request of a youth or trainee representative ( BetrVG );
- in the case of a request for continued employment after a proper objection by the works council ( (5) BetrVG).
An employment relationship based on an employment contract is reassigned to a new legal entity (Section 613a BGB, Section 10 AÜG), extended with the original employer (Section 102 (5) BetrVG) or a contractual training relationship is converted into an employment relationship (Section 78a BetrVG).
The above definition of the employer must therefore be made more precise: The employer is the party in an employment relationship (usually based on an employment contract) who by virtue of this employment relationship is entitled to demand the work of the employee and is obliged to remunerate it.
The important thing is "by virtue of this employment relationship". The employer is therefore not already who, based on derived law , may exercise the right to claim or at least issue instructions to the employee or who is (also) obliged to pay the employee or who actually pays the employee's wages directly by agreement with the contract employer.
Relativity of the employer property
Being an employer is a relational property of a legal subject in relation to another legal subject (then with the status of an employee ) within the framework of an employment relationship (based on an employment contract). The sociological talk of a trend "from contract to status" is misleading. There is no longer any status / status in the BGB.
A legal entity can therefore have the status of employer and employee at the same time:
- An employee who employs a cleaner for his private household is an employee and employer at the same time. However, this is not very spectacular because it affects various economic contexts.
- However, due to the relativity of the employer property, a natural person can also simultaneously have the employer and the employee status with regard to the same economic context: This is the case if the employee of an employer contracts with another person to fulfill his work obligation , without this being the employer of the Employee should be in an employment contract. In labor law this is terminologically misleading called indirect employment .
- Employer within the meaning of Union law
The national employer term does not have to be identical to that under Union law. As far as national law is implementation of EU law , the interpretation of the ECJ is decisive. In case of doubt, the terminology to be used must be checked for each EU directive . For the company transfer directive, for example, the BAG denied any understanding of the term employer that deviated from national law.
The legal form of the employer can be:
- natural person (e.g. sole trader , private person );
- legal person of
- unincorporated association of persons (unincorporated association , association under civil law );
- a partnership ( OHG or KG ).
It is important that, following a change in the case law of the Federal Labor Court (BAG), the (foreign) GbR (company civil law) is now also employable, so that a GbR and not the individual shareholders are to be sued as an employer in full, provided that the GbR has acted as a contractual partner.
Under German law, the group as a whole or without further notice is not the controlling group company, but only the group company with which the employee has concluded the employment contract, the employer of the employee.
The leasing of employees serves the hirer to avoid a direct employment relationship with the employee (the employee). According to the contractual agreements, only one intermediary (lender) is a contractual partner and thus an employment contract partner of the employee. An employment relationship between the employee (temporary worker) and the hirer is only established by law in the event of unauthorized temporary employment. In many cases, however, one speaks of the fact that there is a split employer position or a division of employer functions in the case of temporary employment . However, this does not change anything in the sole employer position of the lender in the normal case of permitted temporary employment and is therefore misleading.
Indirect employment relationship
In an indirect employment relationship, an employee hires an employee in his own name who works for him at the (main) employer. Here too, the sole contract employer is the intermediary. Again, misleadingly, the third party and beneficiary has been called an indirect employer since the 1930s , in order to make the third party (also) an employer through the choice of words and to include them in the responsibility towards the employee.
Caretaker of property management companies
Sometimes caretakers do not have to sign an employment contract with the property management company, but with the house owner. Then only the homeowner is the caretaker's employer and not the property management company, even if the homeowner has transferred his authority to the homeowner company.
Group employment relationship
The dogmatics of the group employment relationship is confused.
- A typical example are musicians in an orchestra: If they conclude direct employment contracts with a third party, then normal direct employment relationships exist. However, if an orchestra concludes a contract with the third party in its own name, the individual musicians are not in a direct contractual relationship with the third party. One then speaks of an ingroup . Only the in-group is a formal contractual partner of the musicians and, if there is an employment and not social relationship in the relationship between the musicians and the in-group, the employer of the musicians.
If insolvency proceedings are open, it is not the debtor but the insolvency administrator who is to be sued as the administrator of the debtor's assets as the employer. If only an insolvency application procedure is opened, this does not change the employer position of the previous company, even if a so-called preliminary insolvency administrator has been appointed. Only if - as an exception - a so-called strong provisional insolvency administrator is appointed, this is considered an employer. If the debtor is only allowed to make dispositions with the approval of the preliminary insolvency administrator, this alone does not make the preliminary insolvency administrator a strong preliminary insolvency administrator .
Employer and works council
In the Works Constitution Act , the term employer is used in two ways: On the one hand, the employer is the employee's contractual partner and, on the other hand, he is the organ of the works constitution . The terms entrepreneur and employer are congruent there and merely refer to different legal relationships, functions and activities of the same person.
The employee is to sue the employer - for example in the event of a dismissal - i. H. usually the contractual partner, and not the person who issued instructions, paid the remuneration for the employer or was ultimately the economic beneficiary of the work. If deadlines are to be observed, as is the case with dismissal protection suits , if there are any doubts, it is better to sue too many rather than too few to the right employer.
The interests of employers are represented by the Federation of German Employers' Associations (BDA) and their affiliated associations.
In Austria , an employer is someone who enters into an employment relationship with an employee on the basis of a service contract in accordance with ABGB . The employer must regulate the services in accordance with (1) ABGB and, with regard to the rooms and equipment to be provided or provided by him, ensure at his own expense that the life and health of the employee, insofar as this is possible according to the nature of the service, to be protected.
In Switzerland , according to the generally applicable definition, an employer is someone who has been promised work performance in a contract under private law and integrated into a work organization - their own or that of a third party. In individual cases, a distinction must be made between the holder of the right to work ( abstract employer ) and the holder of the right to issue instructions ( specific employer ).
Largest employer in the world
The largest employers in the world, measured by the number of employees in millions, were in 2010:
- People's Liberation Army (2008): 2.3
- United States Department of Defense : 2.1
- Walmart : 2.1
- McDonald’s (entire franchising system ): 1.7
- China National Petroleum Corporation : 1.7
- State Grid Corporation : 1.6
- National Health Service : 1.4
- Indian Railways (2006): 1.4
- Foxconn (May 2013): 1.23
- China Post Group : 0.9
- Basic concepts of labor law
- Employers' association
- Collective agreement
- labor union
- Codetermination Act
- Roland Karassek: "Employees" and "Employers" - a search for traces of the history of terms , in: Work - Movement - History , Volume II / 2017, pp. 106–127.
- Brothers Grimm, German Dictionary , Volume I, 1854, Sp. 543
- Alois Brusatti / Wilhelm Haas / Walter Pollak (eds.), History of Social Policy with Documents , 1962, p. 38
- Hermann Reichold, Labor Law, 2nd edition, Beck, Munich 2006, ISBN 3-406-53869-X , § 2 Rn. 5.
- BAG, judgment of August 11, 2015, Az .: 9 AZR 98/14
- z. B. Ulrich Preis, Individual Labor Law , 5th edition, Schmidt Cologne, 2017, ISBN 978-3-504-42021-5 , Rn. 129.
- BAG, judgment of July 22, 2014, Az .: 9 AZR 1066/12 - Rn. 13 = NZA 2014, 1330
- Günter Schaub et al.: Labor law manual. 17th edition. Beck, Munich 2017, ISBN 978-3-406-70289-1 , § 16 Rn. 5
- BAG, judgment of September 27, 2012, Az .: 2 AZR 838/11 - juris Rn. 17th
- BAG, judgment of September 9, 1982, Az .: 2 AZR 253/80 - AP No. 1 to § 611 BGB caretaker = BAGE 40, 145
- Ulrich Preis, Individual Labor Law , 5th Edition, 2017, Rn. 132 only seems to assume the possibility of a “uniform employment relationship” between several employees and a third party
- Manfred Rehbinder, Bern Commentary on the Swiss Civil Code , Volume VI, 1985, Art. 319 N. 13
- Manfred Rehbinder, Bern Commentary on the Swiss Civil Code , Volume VI, 1985, Art. 319 N. 14
- OECD, Model Tax Convention on Income and on Capital , Updated as of April 29, 2000, Paris 2000
- Defending jobs. The Economist online, September 12, 2011.