06-27-2019  | Update Employment Law July 2019

German Federal Labor Court: Orientation Internship of up to three months without minimum wage may be completed during different periods




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Facts of the case

The plaintiff and the defendant, who operates a horse-riding facility, agreed on a three-month internship for career orientation (professional horse farmer; Pferdewirt). The internship started on October 6, 2015. The plaintiff was involved in saddling and cleaning horses, putting them on a belt, feeding them, taking them to the pasture and back, and helping with stable cleaning. During the period from November 3 to 6, 2015, the plaintiff was ill and not fit to work. On December 20, 2015 she went on a family vacation as agreed upon with the defendant. The parties agreed that the plaintiff should return to the internship at the defendant’s business on January 12, 2016 in order to be able to meanwhile complete a few “try-out days” on other horse farms. The plaintiff’s internship ended on January 25, 2016 EOD. The defendant did not pay the plaintiff any remuneration.

Decision

In its ruling on January 30, 2019 (5 AZR 556/17), the BAG decided that the plaintiff is not entitled to the legal minimum wage. The internship is deemed an orientation internship (Orientierungspraktikum) within the meaning of Sec. 22(1) s. 2 No. 2 German Minimum Wage Act (Mindestlohngesetz; MiLoG) which did not exceed the maximum period of three months. The internship may be interrupted from a legal and factual perspective for the intern’s personal reasons and extended by the interruption period when and if there is a correlation in terms of objective and time between the individual periods and the actual internship does not exceed a maximum period of three months in total.

Neither from the wording of Sec. 22(1) s. 2 No. 2 MiLoG nor from a systematic perspective or based on the objective of the regulation can it be derived that the orientation internship must be completed during one uninterrupted period. Sec. 22(1) s. 2 No. 2 MiLoG shall on the one hand provide the intern with the opportunity to get an impression of the intended job activities; on the other hand, the impermissibility of claims for legal minimum wage for an internship of up to three months is intended to ensure that the useful tool of an internship is not subject to any misuse. These objectives did not require that interruptions in the legal or actual sense should not be taken into account when calculating the duration of the internship. This is due to the fact that the entrepreneur does not receive any services from the intern during the interruption period and thus the intern is not exploited unethically or unfairly during said period.

In this specific case, the BAG considered the interruption of the internship due to the plaintiff’s illness, the Christmas family vacation and the “try-out days” on other horse farms as the plaintiff’s personal reasons. Furthermore, the internship was interrupted only for a few days each time and continued without any objective changes directly after the interruption.

Practical notes

The convincing rationale presented by the BAG in its ruling makes a flexible handling of three-month orientation internships without any red-tape possible in practice. Brief interruptions for personal reasons (vacation, illness, traveling, etc.) do not have any adverse effects and do not lead to any minimum wage requirement if the internship is continued in a timely manner after the interruption.

The BAG also clarified in its decision dated January 22, 2019 how the permissible maximum internship period of three months must be calculated: The calculation must be based on a general computation basis of 30 days per month. The permissible maximum period of three months is complied with if the intern’s work for the entrepreneur did not exceed 90 days.

Finally, the BAG commented on the question of whether the interruption would have to be agreed upon beforehand. The exemption from the minimum wage requirement does not require that an interruption of the orientation internship has been agreed upon prior to the internship. Such interruption may also be agreed upon after the commencement date of the internship. Thus, the parties in the internship relationship can respond promptly to any unforeseeable events without risking any minimum wage obligation in the internship.

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