Minimum wage for interns?

Created by Christine Ostwald | |  Labor Law

On January 31, 2019 (5 AZR 556/17) the Federal Labour Court (BAG) has taken a commendable decision on the contentious legal question regarding the payment of the minimum wage for interns.

Interns are not classified as employees, however, according to article 22 sec. 1 sent. 2 German Minimum Wage Act (MiLoG) interns are entitled to the minimum wage as long as they are not affected by the statutory exemptions stated in the recitals 1 to 3 of the respective law. According to recital 2 of the provision, interns are not entitled to the minimum wage if the internship serves the professional orientation and does not last longer than three months. Up to now it was not clear how interruptions of an internship were to be handled.

In the case that was before the court, the claimant was working for free as intern in an equestrian facility from October 6, 2015 to January 25, 2016. During December 20, 2015 and January 11, 2016 the claimant was not present on the equestrian facility due to holiday and an interruption upon her own request. On January 25, 2016 the internship of the claimant ended and she decided not to start the apprenticeship as fully qualified groom at the equestrian facility of the defendant. In fact she demanded payment of the minimum wage as she was working for the defendant for more than three months.

The labour court in Mönchengladbach has decided in favour of the payment claim. However, the state labour court of Düsseldorf has set aside the ruling. The internship is to be classified as professional guidance internship in terms of article 22 sec. 1 sent. 2 recital 2 MiLoG. Only if the internship exceeds the period of three months the intern is entitled to the minimum wage from the start. The decisive question was whether interruptions of the intern’s activities are considerable or irrelevant. Based on the overall context the duration of the internship lasted from October 6, 2015 to January 25, 2016 and would have exceeded the three-months-period. According to the state labour court Düsseldorf there are no reasons objecting splitting an internship into several sections. The wording of the law does not implicate that the internship is to be done in one piece.

This legal opinion was verified by the Federal Labour Court. An internship can be interrupted both legally and in fact if the reason for the interruption is based on personal circumstances of the intern or if there is a factual and temporal connection between the individual sections of the internship. Both aspects were given in the present case. First the intern has taken a couple of days off work and then has not shown up for a couple of more days at her own request. There was a factual and temporal connection between the individual sections of the internship. However, as overall the intern has not worked for more than three months the minimum wage was not owned by the defendant. The interruption was irrelevant.

Practical tip:

An internship that serves the purpose of professional orientation is only subject to minimum wage if it lasts more than three months. It is possible to divide the internship into individual sections if there is a temporal and factual connection and if the interruption caused by personal circumstances of the intern. Deadline management is crucial as there is the possibility that the minimum wage is to be paid for the whole duration of the internship (and not only for fourth month).

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