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famPlus in conversation with labor law expert Manuela Obert. Manuela Obert has her own law firm in Kirchseeon near Munich. She is a mother of two children and works full-time. Additionally, she is responsible for labor law issues within the framework of initial legal consultation for fellow women at the Association of Working Mothers e.V. (VBM). Therefore, she knows the legal aspects of childcare not only as a lawyer but also from her own experience very well.
Mrs. Obert, what is the difference from an employment law perspective between a childminder and a nanny?
Manuela Obert: The parents enter into a private employment contract with the nanny, and the childminder works on a self-employed basis. This results in two significant differences: Firstly, the nanny is bound by instructions. This means she receives directions from the parents on how, when, and where she is to perform her work. Secondly, there is no legal examination of the nanny's qualifications and personal suitability. Anyone can work as a nanny and call themselves such. In contrast, a childminder must meet legal requirements to work in that capacity. She must have the appropriate training and possess a valid care license. As parents, one should therefore be very cautious about whom they employ as a nanny and thoroughly check the applicants. You should request certificates, check references, and calmly visit the applicant at home to get acquainted.
What does an employment contract with a nanny look like?
Manuela Obert: In general, the rule for employment contracts is: less is more. Much is already regulated by law. Therefore, one should focus on the key points in the contract, such as working days, working hours, payment, etc. I have drafted a sample contract for famPlus, which is specifically tailored to the employment of nannies in one's own household. It also includes an additional confidentiality agreement and a declaration concerning the right to one's own image. In my opinion, both are important to protect one's privacy and the child. ( Contracts available here for registered users.)
What documents do I need for the contract signing?
Manuela Obert: You need a copy of a valid ID card and, if applicable, a valid work permit. Then you will need the details of the health insurance and a social security card or the social security number. Additionally, I recommend having a "certificate of good conduct for private purposes" presented. The nanny can easily obtain this at the town hall in her place of residence.
How and where do I register the employment?
Manuela Obert: That depends on the scope of the employment. If it is a 400-euro job or mini-job, it is referred to as marginal employment. In this case, the processing is relatively simple. From 400.01 euros, you enter into a regular employment relationship subject to social security contributions. In this case, you must proceed differently.
What do I need to do if it is a mini-job?
Manuela Obert: For a mini-job, you register your nanny using the household check procedure with the Minijob-Zentrale of the German Pension Insurance Knappschaft-Bahn-See in Essen. You can handle everything online. If you have all the documents and information ready, the process is quick and easy. The Minijob-Zentrale offers parents a hassle-free package. It calculates the social security contributions and deducts them via direct debit. The same applies to flat-rate taxation and statutory accident insurance.
And what must I do if the scope exceeds 400 euros per month?
Manuela Obert: From 400.01 euros, a company number is required, which you can obtain from the company number service of the responsible employment agency in Saarbrücken. Now you have to register your nanny with the health insurance company, editorial note. You must calculate and pay the contributions for health, care, and pension insurance yourself. Additionally, you need to take out accident insurance. For this, it is best to contact your nanny's health insurance company or get information in advance from the German Pension Insurance.
Does the nanny have the right to paid vacation?
Manuela Obert: Yes, the nanny is entitled to paid vacation. It doesn't matter whether she is employed on a minor basis or beyond that.
How do I calculate the vacation days?
Manuela Obert: The statutory minimum holiday is 24 days for a 6-day workweek and is regulated by the Federal Holiday Act. (Leave of Absence Act) regulated. For a 5-day week, it is 20 days, for a 4-day week, 16 days, for a 3-day week, 12 days, and so on. However, the full vacation entitlement is only acquired once the employment relationship has existed for at least six months. Before that, it is only granted on a pro-rata basis. So if the nanny has only worked for two months, she is entitled to only 2/12 of her total annual vacation. Calculation must always be rounded up to whole days.
What about continued payment of wages in case of illness?
Manuela Obert: Here, too, the legislation is clear, and there is no difference between minor and socially insured employment: The nanny is entitled to continued pay in the event of illness. If she has her own children under twelve years of age, she is also entitled to unpaid leave if one of her children falls ill. Generally, this is up to ten days per child.
What about breaks? Are there legal requirements regarding this?
Manuela Obert: A break regulation can only exist if interruptions are possible at all. In my opinion, this is not feasible for a nanny, although it is legally regulated. If you employ the nanny full-time, she naturally also needs to rest sometimes. She can do this when the child is sleeping or playing alone. However, she still has the duty of supervision. I would definitely not agree to a fixed contractual break regulation down to the hour. Unless someone else takes care of the child during the nanny's breaks. Because if you agree to fixed break times in a contract, the nanny does not have the duty of supervision during this time. Who is responsible during this period? If the nanny insists on precisely scheduled breaks by the hour, you might also consider whether the person is suitable for the position at all. Which brings us back to the point that a nanny should be thoroughly vetted. After all, you are entrusting her with the most valuable thing in your life.
Law Firm Manuela Obert
www.kanzlei-obert.de
Sample contracts, powers of attorney, etc. in the advice section (for registered users only)
Sample Contract Templates & Co.
Association of Working Mothers e.V. (VBM)
Federal Holiday Act
www.gesetze-im-internet.de/burlg/
