A nursing agency offers 24-hour care. However, the social assistant placed by the company is only paid for 30 hours per week. She complains about that. A court is now making it clear that the woman must be paid accordingly for the all-round care.
A Bulgarian who cared for a woman over 90 years of age around the clock is also entitled to the minimum wage around the clock. This was decided by the Berlin-Brandenburg Regional Labor Court. The Berlin judges only exempted individual hours when the elderly woman had visitors.
The complaining social assistant from Bulgaria had an employment contract for 30 hours a week and received around 1,560 euros a month. Employer was a Bulgarian company that cooperated with a German recruitment agency. This advertised “24-hour care at home”. In its contract with the person in need of care, the agency had undertaken to provide comprehensive care, including the entire household.
In 2015, the Bulgarian cared for a woman who was over 90 at the time in a senior citizens’ residential complex in Berlin. With her lawsuit, she claims that she actually worked around the clock or was on call at night. Therefore, she demands the minimum wage for 24 hours a day, a total of 42,636 euros for seven months. She received 6680 euros from her employer.
In a sensational judgment, the Federal Labor Court in Erfurt ruled in June 2021 that nursing and care workers are entitled to the minimum wage for around-the-clock care and availability, including for standby times. However, the regional labor court should re-examine the extent to which the Bulgarian had actually worked 24 hours a day.
After another hearing of the plaintiff and other witnesses, the regional labor court now considered this to be largely credible. It only deducted individual hours in which the old woman had visitors and was with them, for example, in the restaurant of the senior citizens’ residential complex. As a result, the Bulgarian was awarded a total of 38,709 euros.
The extent to which the social assistant can assert this claim against her Bulgarian employer remains to be seen. The court did not have to decide whether the Bulgarian company could also take the German placement agency on board because they had promised 24-hour care despite the employment contract for only 30 hours a week.
The Bulgarian social assistant was represented by DGB legal protection. After the verdict was announced, the service trade union Verdi in Berlin called for “further development of long-term care insurance into a ‘solidarity care guarantee’: Everyone pays in, and care-related costs are borne entirely by the solidarity community”.
