Table of Contents
When are secondary jobs allowed?
When concluding an employment contract, an employee does not make his entire work force available to the employer, but only for a certain period of time. That is why the employee is basically free - without notifying his boss - to take on a secondary job.
Allerdings kann eine Nebenbeschäftigung unter Arbeitsschutz-Gesichtspunkten dann unzulässig sein, wenn dadurch die Arbeitszeitgrenzen des Arbeitszeitgesetzes überschritten werden. Außerdem kann das Recht, einen Nebenjob auszuüben, arbeitsvertraglich, tariflich oder durch company agreement eingeschränkt oder aufgehoben werden.
A ban on secondary employment stipulated in the employment contract is permissible if the employer has a legitimate interest in doing so. Such is the case if the work performance owed by the employee is impaired by the part-time job or the employee is ill and unable to work.
If an employer invokes a ban on secondary employment, then he must be able to explain and prove this in detail. If he succeeds, the violation of this prohibition can justify an ordinary dismissal of the employee, in severe cases even termination without notice (e.g. if you are on sick leave and your boss catches you doing a sideline).
Beamte und Beschäftigte im öffentlichen Dienst benötigen für die Ausübung eines Nebenjobs stets eine Genehmigung. Der Arbeitnehmer kann Anspruch auf eine solche Genehmigung haben, wenn er z. B. im öffentlichen Dienst lediglich eine Teilzeitbeschäftigung ausübt. Eine einmal erteilte Genehmigung kann grundsätzlich nur zurückgenommen werden, wenn der Mitarbeiter seinen Duties aus seinem Hauptarbeitsverhältnis nicht mehr ordnungsgemäß nachkommen kann oder wenn der Arbeitgeber sich den Widerruf der Genehmigung vorbehalten hat. Anderenfalls kommt nur eine Änderungskündigung in Frage.
In which cases are part-time jobs prohibited?
Secondary employment is not permitted in the following cases:
· The workforce in the main employment relationship is severely impaired.
· The part-time job affects the main employer's competitive interests.
· The employee works on the side as a part-time job.
· People work during their vacation.
· The employee is on sick leave.
An impairment of the main employment relationship can be assumed, for example, if you often appear overtired due to the additional stress caused by your part-time job at your main place of work. It is even worse if you make mistakes in your work as a result. Then your boss can even demand compensation from you. In such a case, you must expect termination sooner or later after receiving a prior warning. You shouldn't let it get that far.
If you want to do a part-time job (or have to for financial reasons), then you should make sure that the breaks between your main and secondary employment are long enough. This is the only way to be efficient in both activities in the long term and to remain so.
It should go without saying that you are not doing your sideline at a competing company. You should also - especially if you work according to the 630 DM Act - make sure that all social security and tax law requirements are met.
Short-term and marginal employment
If you are only employed briefly or to a limited extent (e.g. as a tourist guide, fruit picker), you can obtain a second tax card for this activity. In many cases, however, you can also work without a tax card.
Short-term employment (or seasonal work) is when the activity is limited to two months or 50 working days in the course of a year.
On the other hand, there is a small amount of employment if the employment is regularly carried out for less than 15 hours a week and is remunerated at a maximum of DM 630 per month. The "insignificant earnings limit" of DM 630 applies in both East and West Germany.
If you have a marginal part-time job in addition to your main job, which is subject to social security contributions, then the income from this secondary job will be fully included in the contribution obligation. For example, if you earn 4,000 DM gross per month and you get 500 DM in your part-time job, then you have to pay the social security contributions for the entire earned income of 4,500 DM.
In principle, employees and employers each pay half of the social security contributions. In the example, your secondary employer must pay the full employer's contribution to social insurance (i.e. pension, health, unemployment and long-term care insurance) for the salary of DM 500. You yourself have to pay your employee contribution to social security - with the exception of unemployment insurance.
Attention: If you are neither a member of a statutory health insurance nor a family member in a health insurance company (e.g. because you are a civil servant), the secondary employer only pays the pension insurance contribution. Of course, the remuneration from the marginal part-time employment is also taxable. You can get a second tax card for this. Your secondary employer can also tax your wages at a flat rate. However, in this case the hourly wage for your part-time job may not be higher than DM 22.
Minor employment, like other employment relationships, must also be reported to social security. This means that they are included in the normal reporting procedure. The secondary employer is therefore obliged not only to register and de-register, but also to make all other reports to the responsible health insurance company.
Short term employment
In the case of short-term employment, no social security contributions have to be paid if the employment is contractual or limited according to its type (e.g. seasonal work) and is not carried out professionally. In the case of short-term employment of a maximum of two months or a maximum of 50 working days, the employer is therefore not required to submit any interruption reports or annual reports to the health insurance company.
Income from short-term employment is taxable. In principle, the secondary employer can pay the tax to the tax office at a flat rate. However, it can also be necessary or useful to work on a second control card.
Part-time jobs - important judgments
Second job while on sick leave
If an employee has even a slight part-time job with another employer while he is on sick leave, he must expect to be dismissed. ArbG Frankfurt / Main, B. 12. 1998 - AZ: 4 Ca 8493/97
Required secondary employment permit
A part-time employee in the public service requires a secondary employment permit even if the sum of the time required for secondary employment and part-time work does not exceed the regular working hours of a full-time employee.
BAG, 30. S. 1996 - AZ: 6 AZR 537/95
Several employment relationships of marginal part-time employees
Employers of marginal part-time employees are not allowed to prohibit them in their employment contracts from entering into further employment relationships in order to escape their social security contributions. Such an agreement is immoral and therefore void.
LAG Cologne - AZ: 4 (2) Sa 970/93