Term and Meaning of ‘Working’ in a Legal Context
The term ‘Working’ does not have a standardized legal definition in the German-speaking legal sphere but is applied in various ways across different contexts. In particular, in contract law, labor law, corporate law, copyright law, and tax law, ‘Working’ plays a significant role as part of various legal concepts. In international and especially Anglo-American legal systems, ‘Working’ is a common term that can have different meanings depending on the context. The following article explains the different forms, interpretations, and legal frameworks of ‘Working’ under German and international law.
Working in Labor Law
Terminology and Labor Law Classification
In the context of labor law, ‘Working’ is commonly used to refer to work activity, work performance, or the obligation to work. Term combinations such as ‘Working Hours,’ ‘Working Conditions,’ and ‘Working Agreement’ are regularly used in employment contracts as well as in collective and company regulations.
Working Hours – Regulations on Working Time
According to the Working Hours Act (ArbZG), permissible working hours are legally limited in Germany. The term ‘Working Hours’ covers the start, end, and scheduling of daily working time along with break regulations. This is particularly relevant for shift work, flexitime models, or remote working, i.e., working from outside the employer’s premises. In a European legal comparison, working time is regulated by Directive 2003/88/EC on working time.
Working Conditions – Work Environment
‘Working Conditions’ refer to the circumstances under which employment is carried out. These include health protection, occupational safety, workplace equipment, and equal treatment. The Occupational Safety and Health Act (ArbSchG) and the General Equal Treatment Act (AGG) provide binding legal foundations for these matters.
Flexible Forms of Work: Remote Working and Home Office
With digitalization, so-called remote working has become increasingly important. Legally relevant aspects include adherence to occupational safety regulations as well as clear rules concerning working time, liability, and data protection.
Working in Corporate Law
Working Capital
The term ‘Working Capital’ refers to a company’s short-term available current assets, particularly in the context of accounting and tax considerations. Although there is no precise definition in the German Commercial Code (HGB), working capital is essential for assessing a company’s liquidity and creditworthiness.
Working Interest
In international corporate law, particularly in natural resources extraction contracts, ‘Working Interest’ describes the percentage in which a company participates in production, costs, and profits. Legally binding regulations are determined in private contracts with elements of international law, such as in so-called Joint Operating Agreements.
Working in Copyright and Patent Law
Working (Use) of Intellectual Property Rights
In the area of intellectual property, especially patent law, ‘Working’ often refers to the ‘use’ of a patent. The so-called ‘working requirement’ obliges the patent holder to exploit the protected invention in a manner that is beneficial under the intellectual property right. Failure to use the patent may lead to specific legal consequences, such as the granting of a compulsory license or the expiration of the patent.
Labor Law and Corporate Law Implications of Work for Hire
In the area of copyright and protection of trade secrets, ‘work for hire’ is an internationally used term describing whether creations by employees or contractors belong to the employer or the client. German law addresses this issue, among others, in the Copyright Act (§ 43 UrhG).
Working in Tax Law
Wages and Tax Law Classification
Income from ‘Working’ is subject to wage tax or income tax in accordance with the provisions of the Income Tax Act (EStG). Especially in cases of assignments abroad, teleworking, or cross-border remote working, specific treaty provisions apply to avoid double taxation.
Concept of Permanent Establishment in International Working
Work performed from abroad may result in the establishment of a permanent establishment (§ 12 AO, Permanent Establishment Decree). This is particularly significant for long-term assignments (working abroad) as well as the tax classification of digital workplaces.
Working in Social Law
Contribution Law Consequences
Reporting and contribution obligations under social law arise primarily from statutory health, pension, unemployment, and accident insurance. The term ‘Working’ is relevant for determining employment relationships and the allocation of contributions, particularly in cases of ‘gig working’ and new digital work models (platform work).
International Legal Comparison and Cross-Border Working
Working Visas and Residence Regulations
The legal basis for ‘Working’ in an international context is determined by national work permits and residence rules, such as the Skilled Immigration Act or European residence permits. The legal status of labor migrants is regulated in visa categories like ‘Working Holiday’, ‘Seasonal Working Visa,’ or ‘Blue Card EU’.
Conflict of Laws Issues
In cross-border employment, especially in the area of remote working, the question arises as to which law applies. The EU Rome I and Rome II Regulations provide key guidance on employment contract law and tort law.
Legal Risks and Obligations in Working
Liability and Contract Law
Fulfillment of employment contract obligations in ‘Working’ is a prerequisite for claims to remuneration and liability scenarios. Breaches of the obligation to perform work can result in claims for damages or termination rights.
Data Protection and Confidentiality
Especially in remote and digital working, the processing of personal data is subject to the General Data Protection Regulation (GDPR) and the Federal Data Protection Act (BDSG). Companies must implement compliance and protective measures in this regard.
Summary
The term ‘Working’ is not legally defined under German law, but as an international term, it has a wide range of practical and legal relevance. Its structure and legal implications particularly affect labor law, corporate law, tax law, social law, and, crucially, data protection law. The specific legal classification of ‘Working’ always depends on the relevant factual context as well as applicable statutory provisions and international agreements.
Frequently Asked Questions
Is a work permit required for working in Germany?
For engaging in gainful employment in Germany, it is important to distinguish whether a person is from an EU/EEA country or a third country. Citizens of the EU, EEA, or Switzerland do not require a special work permit; they enjoy the so-called free movement of workers. Employment is possible under the same conditions as for locals. For individuals from third countries, however, the rule is that – with few exceptions, e.g., EU Blue Card, highly qualified workers, or certain internships – they must apply for a residence permit that expressly authorizes employment before taking up work. The application is usually submitted in the home country at the German diplomatic mission and, after thorough examination and, if necessary, with the approval of the Federal Employment Agency, is granted. Violations of these requirements constitute an administrative offense or – in the case of intentional illegal employment – a criminal offense.
What labor law regulations apply to working in Germany?
German labor law generally applies to all employees whose employment relationship is predominantly fulfilled in Germany. It covers, among other things, working hours, statutory minimum wage, vacation entitlements, protection against dismissal, and occupational safety. Important provisions are found in the Civil Code (BGB), the Protection Against Dismissal Act (KSchG), the Working Hours Act (ArbZG), the Federal Holiday Act (BUrlG), and the Minimum Wage Act (MiLoG). The Part-Time and Fixed-Term Employment Act (TzBfG) and Maternity Protection Act (MuSchG) also apply. For working, the form of contract, probationary period, fixed-term employment, and possible collective bargaining agreements (also in hospitality, seasonal work, or mini-jobs) are especially relevant.
Are remunerations received for working subject to social security contributions?
Whether an activity is subject to social insurance depends on the scope of employment. In Germany, regularly employed employees are subject to compulsory health, long-term care, pension, unemployment, and accident insurance. Social security contributions are also obligatory for working, unless the activity is classified as marginal employment (mini-job with an earnings limit of 538 euros per month or short-term employment of a maximum of three months per year). Employers must properly register employees with the social insurance institutions and pay both the employer and employee shares. Exceptions may apply for interns, pupils, and students, who are subject to special regulations. Violations may result in fines and retroactive payments.
What tax obligations arise when working in Germany?
All paid activities carried out with a place of work in Germany are generally subject to tax. The employer is obliged to withhold income tax, solidarity surcharge, and, if applicable, church tax and to pay these to the tax office. Every employee receives a tax identification number that is required for registration. For seasonal workers or short-term assignments, flat-rate taxation may apply; otherwise, the regular wage tax deduction procedure applies. For foreign employees, the double taxation agreement of the home country may also be relevant. At the end of the year, a voluntary income tax return may be submitted; compulsory assessment applies in certain cases, e.g., with multiple employment relationships.
How are working hours regulated by law when working?
The Working Hours Act (ArbZG) stipulates that the working day must not exceed eight hours, but it can be extended to up to ten hours provided the average does not exceed eight hours within six months. At least eleven hours of rest must be observed between shifts. Additional protective regulations apply to young people and certain other groups (e.g., expectant mothers). Sunday work is generally prohibited, with statutory exceptions, for example in hospitality or shift work. Break regulations are also set by law: for working hours exceeding six hours, a minimum 30-minute break; for more than nine hours, at least 45 minutes.
Who is liable in the event of a work accident during working?
In the case of work accidents, statutory accident insurance applies, contributions of which are paid entirely by the employer. Insurance coverage exists during working hours and on the direct way to and from the workplace. Employers are obliged to report any work accident immediately to the relevant occupational accident insurance association. Employees are entitled to medical treatment, rehabilitation measures, and, in case of permanent impairment, to a disability pension. Grossly negligent or intentional behavior can result in recourse claims. Violations of occupational safety regulations can lead to criminal and civil liability for both employers and employees.
How does protection against dismissal apply when working?
The Protection Against Dismissal Act (KSchG) protects employees after the probationary period – and provided more than ten employees are employed in the company – from ordinary dismissal unless there are personal, conduct-related, or operational reasons. For fixed-term employment contracts or jobs lasting less than six months, protection against dismissal is limited or does not apply at all. Special protection provisions exist for pregnant women, parents on parental leave, severely disabled persons, and works council members. The statutory notice period for employees is four weeks to the fifteenth or end of a calendar month; for employers, the periods are longer depending on the duration of employment. In case of unlawful dismissal, there is the possibility to file a claim for protection against dismissal at the labor court.
