Internships are available in various forms, so the legal situation is not always clear. Which type of contractual relationship is present has to be judged on a case-by-case basis. The actual content and structure of the internship is decisive here, and not its nomenclature.
Employment Relationship, Freelancing or Training Contract
Generally speaking, an internship can be designed as an employment relationship, a freelance activity or a training contract, with differing consequences in labour and social insurance law.
If an employment relationship is present, all employment law provisions – including the collective agreement and company agreements that apply to the respective company – have to be applied.
Freelance work and training contracts are not subject to the protection provided by labour law.
In effect, this means that wages are not paid according to a collective agreement, there is no continued pay in case of illness, and no entitlement to special payments or paid leave.
A compulsory internship as part of school or a degree programme is usually an employment relationship, but it can also be a training contract. This depends on whether it tends to exhibit the features of an employment relationship or – as is typical for training relationships – focuses on conveying skills and knowledge.
If work is carried out, but there is no personal dependence on the employer, it is a freelance job. In this case, the employer/client only indicates which work has to be done. There are no rules regarding the way is has to be done.
Features of an Employment Relationship
Within the framework of an employment relationship, work is carried out in return for payment. Employment relationships are concluded by entering written or oral employment contracts.
The most important feature of an employment contract is the personal dependence of the employees.
|Features of personal dependence:|
|Integration of the employees into the organisational structures and processes of the company|
|Specified working hours|
|A location and a workplace are assigned to the employee|
|Instructions issued by the employer are binding|
|Ongoing supervision by the employer|
For internships in the form of employment relationships, all of the bases of labour law apply, such as the Salaried Employees Act, the Paid Annual Leave Act, the Working Time Act, the Rest Periods Act, the Maternity Protection Act, the Paternity Leave Act and the Work Organisation Act. In addition, the collective agreement and the company agreements have to be taken into account.
For persons under the age of 18, the Act on the Employment of Children and Adolescents applies with regard to working hours and rest periods. It states that overtime is not permitted under the age of 18.
If the employment relationship lasts for more than a month, the employer has to pay contributions to the company pension fund for the employee.
Checklist for Employment Contracts
Before starting an internship, it is worth clarifying the following points and agreeing on them in a written employment contract:
- Precise description of the work
- Beginning and end of the employment
- Working hours
- Place of work
- Wages and payment
- Amount of paid leave
- Food and accommodation (if included), and any deductions made for this
- The terms of collective law-making which have to be applied
- The name and address of the company pension fund