Germany: No Minimum Wage for Compulsory Internship linked to University Admission Requirements

Authors: Verena Braeckeler-Kogel, MAES (Basel) and Meike Christine Rehner

In Germany, a statutory minimum wage of currently 9.82 Euros gross per hour of work applies to all employees in all sectors of business. Employees under 18, trainees and interns are generally exempted from the regulation, observing the specific legal definitions. Aside from the statutory minimum wage, there are special regulations and collective bargaining agreements within certain sectors, e.g. the construction sector. Most of these regulations contain a minimum wage above the statutory one. For trainees, a monthly minimum wage is regulated by a separate law.

The current minimum wage of 9.82 Euros gross per hour will be subject to further increases within this year. As of 1 July 2022, the statutory minimum wage amounts to 10.45 Euros. A further increase to 12 Euros gross per hour is scheduled to be implemented on 1 October 2022.

The regulations on the statutory minimum wage can be found in the Minimum Wage Act (Mindestlohngesetz – MiLoG). The statutory minimum wage applies to all employees in all sectors of business and accrues as a gross amount for each hour of work. Difficulties may arise when it comes to assessing whether special forms of work, such as on-call duty, are subject to the minimum wage. The same applies to the question of whether extra payments (e.g. bonuses) count towards the minimum wage, just to mention two legal aspects concerning the application of the minimum wage in practice. Any employer who fails to comply with the applicable statutory minimum wage, may be fined with up to 500,000 Euros. Therefore, the correct application of the Minimum Wage Act is of high practical relevance, particularly for employers in the low wage sector.

The Minimum Wage Act provides for certain exceptions to the statutory minimum wage for special groups of employees, who can also work without or for lower pay without this constituting a violation of statutory law. Interns are exempted from the statutory minimum wage only under very strict conditions. The exception only applies if the internship in question is part of school or university education or serves as career orientation and does not last longer than three months.

In the case at hand, the Federal Labour Court had to decide whether an intern was exempted from the minimum wage or not. The plaintiff intended to study medicine. In order to be admitted to the medicine course of studies, the university required the completion of a six-month nursing service. Therefore, the plaintiff completed an internship in the nursing ward of a hospital for six months. A remuneration was not agreed.

With reference to the Minimum Wage Act, the plaintiff demanded a gross remuneration in a total amount of almost 10,300 Euros for the six-month internship. In January 2022, Germany’s highest labour court ruled that the intern was, however, not entitled to the statutory minimum wage, as the conditions for an exception from the minimum wage were met. The law expressly exempts compulsory internships during studies from the minimum wage. The court found that this wording clearly shows the intention of the legislator to also exclude compulsory internships from the minimum wage that do not take place during studies, but are mandatory already for admission to a course of studies.

Key Action Points for Human Resources and In-house Counsel

• Violations of the statutory minimum wage can have serious consequences for employers. It is therefore important – especially in the low-wage sector – to comply with the statutory provisions and keep an eye on the regular increases of the minimum wage and other legal changes.
• Exemptions from the statutory minimum wage exist only for certain groups of employees, under specific conditions. In particular for interns, it must be assessed on a case-by-case basis whether the conditions for an exemption from the minimum wage actually apply.