Deutscher Gewerkschaftsbund

Bulgarian carer successfully sues for back pay

“24-hour care” and “round-the-clock care”, not in an old people's home, but in the familiar home environment: this is the promise an industry that is barely straightforward any more uses to advertise itself. It sounds good. But what sounds like a humane alternative to accommodating old people in nursing homes has an ugly downside to it.

The case of a Bulgarian “24-hour carer” the Labour Court in Berlin ruled on in August is one example of what this downside looks like. Ms Alekseva (not her real name), a Bulgarian citizen, had come to Germany as a 24-hour carer and domestic help in June 2013 via a German placement agency. From January 2014 to the end of September 2016, she looked after a 96-year-old senior citizen in her apartment in a retirement home.

During this time, Ms Alekseva was employed successively by two different Bulgarian firms, both operating under the umbrella of the same German placement agency. Her first employment contract provided for a working week of 40 hours at a salary equivalent to €400. In April 2015, she was given a new employment contract by another Bulgarian company for only 30 hours and a gross salary of €1,562. After deducting all ancillary costs for taxes, health insurance, accident insurance and unspecified “additional expenditure to carry out the work”, she received €950 a month. Ms Alekseva was in possession of a so-called A1 certificate that confirmed that she was covered by the Bulgarian social security system.

A 30-hour week and 24-hour-round-the-clock care – is that possible? It's not. Ms Alekseva actually had to be available for nursing, care and household work around the clock; there were no fixed free times and no paid holidays.

"A 30-HOUR WEEK AND 24-HOUR-ROUND-THE-CLOCK CARE – HOW IS THAT POSSIBLE?"

All this would have carried on if Ms Alekseva had not done something that workers in her situation rarely do: she informed herself about her rights and went to court. After a detailed consultation in a DGB advisory centre for mobile workers, she decided to file a claim against her last employer – initially for the period from April 2015 to the end of 2015. This pay claim covered her entire working and on-call time, i.e. 24 hours a day, and came to around €45,000 gross, less the remuneration paid of just under €6,700.

Since the Bulgarian firm was not prepared to settle, the court ruled in favour of the claim for back pay. Ms Alekseva's argumentation regarding the 24-hour working or on-call period was comprehensible and conclusive. On the other hand, the court found the employer's presentation to be implausible. The lawyer of the Bulgarian firm had replied that Ms Alekseva had time off work on Sundays – which was not true. The firm also said she had been able to take free time “by the hour” during the course of the week, e.g. when the elderly woman she was caring for had her midday nap. The lawyer was unable to explain to the court how exactly Mrs. Alekseva's working hours were allocated and on which days she had time off. The judges also emphasised that on-call time had to be remunerated in principle – in this case with the legal minimum wage of €8.50 that was valid at the time.

Even if there is still no written reason for the judgement and the employer can appeal against the decision, some legal movement has been achieved in a grey area, one in which many issues have so far not been clarified legally. Those who demand “24-hour care” also have to pay for 24 hours. The verdict, if it holds, would radically challenge the current business model in the growing market for “live-in” care for the elderly.

No paid holidays, completely unrestricted working hours, no self-determined leisure time, no end to a working day and no weekend – this is the everyday life of hundreds of thousands of mostly Eastern European care workers who are placed in German senior citizen households by seemingly serious placement agencies. “Sensitive”, “cheerful”, “caring”, “reliable” – that's what the advertising says. Nobody can give even a rough figure of how many there really are: experts estimate 100,000 to 400,000. Some speak of a still higher number of unreported cases. At best, the workers are paid the minimum wage – and here, too, they are tricked out of pay with all manner of vague deductions. A weekly working time of 30 to 40 hours is usually taken as a basis. Nevertheless, the carers have to be there for the person they're caring for and in whose home they are accommodated for this purpose 24 hours a day.

“AND MAYBE THE JUDGMENT FROM BERLIN WILL FORCE THE PUBLIC, AT LAST, TO HONESTLY DISCUSS HOW WE IN RICH GERMANY ENVISAGE DECENT CARE FOR THE ELDERLY.”

Apart from the questionable moral nature of the issue, it is obvious that applicable labour law is being systematically violated on a major scale here. However, this rarely leads to consequences: There are no state controls on employment rights compliance, because the model is basically politically desired. While in neighbouring Denmark, for example, the care of the elderly is seen as a service of general social interest, organised by the municipalities and financed from taxes, the state in Germany has been increasingly withdrawing from its duty of caring for the elderly since the mid-1980s. It has long since become a line of business for private firms that are primarily concerned ensuring returns for their investors. This is why, thanks to politics, there is now a huge “supply gap”, which is largely being closed by Eastern European (auxiliary) carers who sign dubiously worded contracts.

Since the state prefers to turn a blind eye to employees' working conditions, the following applies: where there is no plaintiff, there is no judge. It is extremely rare for workers to sue for their rights – if only because they are not aware of them. Model contracts in which they are told that German labour law does not apply are widespread – even among supposedly reputable care providers. What is claimed in these contracts is fundamentally wrong, but fulfils its purpose. To make matters worse, some fundamental legal issues – such as whether and how exactly the Working Time Act applies to carers living in private households or how working time is defined – have not yet been clarified by the highest courts.

The current ruling of the Labour Court in Berlin brings such clarification closer. Eastern European carers and nursing staff are not as devoid of rights as firms would like to make them believe they are. Ms Alekseva has a good chance of receiving at least part of the salary that her employer wanted to withhold from her. Moreover, the ruling throws a spotlight on an industry that prefers to keep its business models and the working conditions of its workers out of the public eye. It also highlights a misguided policy that declares care for the elderly to be largely a private matter, promotes inhumane employment models and presents them as a seemingly practicable solution for the needs of families with dependents that require care. And maybe the judgment from Berlin will force the public, at last, to honestly discuss how we in rich Germany envisage decent care for the elderly.

Contact

DGB Bildungswerk Bund
Michaela Dälken
Hans-Böckler-Straße 39, 40476 Düsseldorf
E-mail michaela.daelken@dgb-bildungswerk.de
Telephone +49 211 4301-198

 

DGB-Projekt Faire Mobilität
Dominique John
Kapweg 4, 13405 Berlin
E-mail mobilitaet@dgb.de
Telephone +49 30 21240540

Service

Funding

This publication has received financial support from the European Union Programme for Employment and Social Innovation “EaSI” (2014-2020). The information contained in this publication does not necessarily reflect the official position of the European Commission.