Wage usury

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In legal parlance, the term wage usury is a synonym for the illegal exploitation of workers. Wage usury exists if the amount of the remuneration in an employment or employment relationship is noticeably disproportionate to the work performance and this disproportion has come about through exploitation of the predicament, inexperience, lack of judgment or the considerable weakness of will of the employee. Usage of wages has both criminal and labor law consequences.

Legal situation in Germany

Requirements of the constitutional case law

In its decision of August 17, 1956 (ban of the KPD ), the First Senate of the Federal Constitutional Court defined the term exploitation (i.e. the constitutionally inadmissible exploitation of labor ) as follows:

“The state is an instrument of compensatory social design [...] In addition, the free democratic basic order takes from the idea of human dignity and freedom the task of ensuring justice and humanity in the relationship between citizens . This includes preventing one from being used by the other. However, free democracy refuses to label the economic fact of wage labor in the service of private entrepreneurs as such generally as exploitation. But it sees it as its task to prevent real exploitation, namely the exploitation of labor under unworthy conditions and inadequate wages. This is the main reason why the welfare state principle has been elevated to a constitutional principle; it is intended to prevent the harmful effects of unlimited freedom and to progressively achieve equality to the extent that is reasonably required. "

In legal literature and case law, wages are described as objectively inadequate if , contrary to applicable federal law (cf. also Art. 4 No. 1 EuSC ), despite full shift work ( i.e. 40-hour week), they do not even meet the socio-cultural subsistence level ( Hartz IV ) of a single employee.

The Federal Labor Court takes a different view: If the agreed wage falls below the applicable social welfare rates without being noticeably disproportionate to comparable collective wages , a decision by the Federal Labor Court does not give sufficient reason to accept usury.

Criminal relevance

Usury of wages is punishable under Section 291 (1) of the Criminal Code and is punished with a fine or imprisonment for up to three years. In particularly serious cases, the perpetrator faces a prison sentence of six months to ten years. A particularly serious case is regularly present when the employee gets into economic hardship due to the usurious wages or the offense is committed commercially.

Wage usury is an official offense .

Theoretically possible, but practically irrelevant, is that an employee commits wage usury by receiving disproportionately high remuneration for his work.

Employment law / civil law relevance

A usurious remuneration agreement is void according to Section 138 of the German Civil Code. Instead, the employee is entitled to the usual remuneration. The same applies to freelance employment relationships that are not employment relationships.

Since the offense of usury in Section 138 of the German Civil Code (BGB) is viewed as a subset of an immoral legal transaction, the labor law assessment usually does not differentiate between immoral and usurious remuneration.

Disproportionate amount of remuneration

According to the case law of the Federal Labor Court, there is usually a noticeable imbalance between performance and consideration within the meaning of Section 138 (2) of the German Civil Code (BGB) if the remuneration does not even reach two thirds of the wage usually paid in the relevant industry and economic region. The criminal courts also judge according to this rule. The two-thirds limit may, however, have to be corrected in the interests of individual justice if the specific circumstances of the individual case require a different assessment of the immoral exploitation or the determination of the value of the work.

For example, the BAG has already viewed the remuneration of a teacher at a private school, which was (only) a quarter below the remuneration of teachers in state schools, as immoral because the public sector granted the employer 97% of the personnel costs as a subsidy and thus requirements for Was allowed to combine the level of remuneration. Conversely, according to the BAG, reductions in the value of the work performed by employees with particularly simple activities or with significant performance deficits should be considered if the relevant collective agreement does not take these people into account. This applies in particular to cases in which the employee would regularly not find an employer at all under the relevant collective bargaining conditions. The extensive subsidization of an employment relationship by the public sector could also play a decisive role.

If the customary remuneration is below the collectively agreed wage, the general wage level in the economic area is not to be used to determine the value of the work. For the determination of the local custom, however, the tariff remuneration can initially be assumed. For a different local custom or for why a different standard should apply in individual cases, the employer is obliged to present and provide evidence.The customary tariff remuneration can be assumed in any case if more than 50% of the employers in an economic area are subject to a collective agreement or if the organized employers employ more than 50% of the workforce in an economic area.

literature

  • Alexandra Franke: Wage usury - also a problem under labor law . Duncker & Humblot 2003. ISBN 978-3-428-11093-3
  • Veit Hans Karl Vossberg: Content controls of employment contract wage regulations . Hamburg 2005. ISBN 3-8300-2099-6

Web links

Individual evidence

  1. ↑ a b c d e BAG of April 22, 2009 - 5 AZR 436/08
  2. ↑ German-speaking case law (DFR): No. 524 f. in: BVerfGE 5, 85 - KPD ban
  3. ↑ Prof. Dr. Helga Spindler, Limits to the Reasonableness of Work with Low Wages and Usury ( Memento of the original from August 10, 2003 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.tacheles-sozialhilfe.de
  4. ↑ Bremen Labor Court, judgment of August 30, 2000, file number Ca 5152, 5198/00 (PDF file; 144 kB) ( Memento of the original of October 6, 2007 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked . Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.bag-erwerbslose.de
  5. ^ Social Court Berlin, judgment of February 27, 2006, Az: S 77 AL 742/05; legally binding
  6. ↑ See on this Prof. Dr. Helga Spindler: Level of social security livelihood and minimum wage in Germany ( Memento of the original from December 16, 2010 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.boeckler.de
  7. ↑ See Johannes Steffen: Demand-covering gross wages (PDF file; approx. 313 kB) , there: Overview 7.1 ff. (Page 20 ff. Of 27)
  8. ↑ a b c Federal Labor Court, Az .: 5 AZR 303/03, judgment of March 24, 2004
  9. ↑ Certain manager salaries could fall under this category
  10. ^ Federal Labor Court judgment of April 26, 2006, 5 AZR 549/05
  11. ↑ In a ruling of April 22, 1997, BGH 1 StR 701/96 BGHSt 43, 53 , the BGH did not object to a decision by the Passau Regional Court, which considered a wage that was around 35% below the collective wage to be usurious.
  12. ↑ BAG of April 26, 2006 - 5 AZR 549/05 - BAGE 118, 66, 72 ff.
  13. ↑ Remuneration of € 5.20 in retail is immoral - Hamm Regional Labor Court, judgment of March 18, 2009, 6 Sa 1284/08, free-urteile.de
  14. ↑ Wuppertal Labor Court judgment of July 24, 2008 ( Memento of the original of August 9, 2008 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. - 7 Ca 1177/08 @1@ 2Template: Webachiv / IABot / www.justiz.nrw.de