There are always uncertainties in connection with the employment of interns. These are generally entitled to the statutory minimum wage. However, exceptions apply to voluntary internships not exceeding a duration of three months as well as mandatory internships.
The BAG (German Federal Labor Court) recently had to deal with the question of whether a compulsory pre-study internship is a mandatory internship and thus subject to the Minimum Wage Act (MiLoG). In its decision of January 19, 2022 (file no.: 5 AZR 217/21), the BAG decided that interns who complete a mandatory internship which is a prerequisite for admission to a course of study under a provision of higher education law are not entitled to the statutory minimum wage.
In the proceedings, the plaintiff had completed an internship of more than six months at a nursing station of the defendant in order to fulfill the admission requirements for obtaining a place to study human medicine at a private, state-recognized university. Payment of remuneration had not previously been agreed between the defendant employer and the plaintiff. After the internship, the plaintiff claimed minimum wage in the amount of more than €10,000.00, since this did not constitute a mandatory internship pursuant to Art. 22 (1) Sentence 2 MiLoG despite the existence of an admission requirement for taking up a course of study in human medicine. For such an internship, not only a "provision under higher education law" is required, but also a pre-existing special legal or contractual relationship between the university and the enrolled student. Such a relationship did not exist prior to the application for a university place.
The Regional Labor Court of the previous instance had already dismissed the intern’s claim. The BAG has now confirmed this decision.
The press release of the BAG, which is so far exclusively available, shows that the defendant is not obligated to pay the statutory minimum wage pursuant to Art. 1 in conjunction with Art. 22 (1) sentence 2 half sentence 1 MiLoG., as the plaintiff does not fall within the law’s personal scope of application. According to the explanatory memorandum to Art. 22 (1) sentence 2 No. 1 MiLoG, claims to the statutory minimum wage are excluded not only for mandatory internships during studies, but also for pre-study internships that are mandatorily required by study regulations as a prerequisite for taking up a particular course of study. This also applies to private universities, provided they are state-recognized. The prescribed admission requirement was equivalent to a regulation under public law. In the opinion of the BAG, this ensures that the internship requirement does not unlawfully circumvent the general entitlement to the statutory minimum wage for interns.
Employers should pay attention to this
As an employer, you should always ask for what purpose the internship is being completed before hiring interns. If the internship is completed on the basis of existing study regulations during or before studies as a prerequisite for admission to state or private but state-recognized universities, the intern is not subject to the MiLoG. Each individual case should therefore be examined before employment.