Obligations during inspections

If you are an employer established abroad providing technical services or labour in Germany, and subject to a customs inspection under the Control of Unreportet Employment Act (Schwarzarbeitsbekämpfungsgesetz - SchwarzArbG), you are required by law to allow such inspection to be conducted and to cooperate fully. The scope of this obligation to cooperate also includes any of your employees encountered during the inspection.

Everyone encountered during the inspection must, for example:

• provide their personal details,
• where applicable, show their contract labourer cards, and/or their EU work permits for the place of deployment and/or for the work they are carrying out in the authorised contract for works and services (in the building industry, for example), and where appropriate, any residence title they may be required to have.

If the Minimum Wage Act (Mindestlohngesetz - MiLoG), the Posted Workers Act (Arbeitnehmer-Entsendegesetz - AEntG) or the Act on the Provision of Temporary Workers (Arbeitnehmerüberlassungsgesetz - AÜG) requires that you comply with prescribed conditions of employment, such as the payment of not less than a minimum wage, the individuals encountered must also state, among other details,

• the hours that they have actually worked,
• their gross wage, and
• for example in the building industry, the amount of holiday pay received and/or how much holiday they have been allowed.
  

While carrying out a paid activity in Germany your employees are obliged to always carry their identity document, passport, or the relevant substitute document, and present it on request to the customs authorities for inspection if you are an employer in any of the following industries:

• building industry,
• catering and hotel business,
• passenger transportation industry,
• haulage, transport, and associated logistics industry,
• fairground amusement industry,
• a forestry industry,
• industrial cleaning,
• businesses involved in setting up and dismantling trade fairs, and the
• meat industry.

If you employ temporary workers and if you hire them out to supply work or services in Germany in an industry in which it is mandatory to carry an identity document and to show it on request, these workers will fall within the scope of the above obligation.

Not carrying an identity document is an administrative offence which is punishable with a fine.

As an employer you are required to verifiably inform each of your employees in writing of their obligation to carry an identity document and to show it on request. You must retain these notices for the period during which the work or services are being supplied and to show them when requested to do so. Also, as an employer within the meaning of Section 1 of the Act on the Provision of Temporary Workers (Arbeitnehmerüberlassungsgesetz - AÜG), you fall within the scope of this requirement to inform if you hired temporary employees out to supply work or services in any of the industries in which there is an obligation to carry an identity document and to show it on request.

Wilful or negligent contravention may be punished with a fine.

The provisions of the Minimum Wage Act (MiLoG), of the Posted Workers Act (AEntG) and of the Act on the Provision of Temporary Workers (AÜG) require that even an employer established abroad who falls within the scope of these Acts must keep the documents, in the German language, available on German territory and surrender them to the customs authorities when requested to do so. These documents include

• Employment contracts and/or any other documents that reveal the essential terms of the employment relationship (Directive 91/533/EEC on an employer's obligation to inform employees of the conditions applicable to the contract or employment relationship, Official Journal of the European Communities No. L 288/32 of 18 October 1991), which may be records such as:

  • pay slips,
  • evidence of wage payments made,
  • evidence of working time.

It may be necessary to request other documents in order to clarify matters; for example, whether the employment relationships of the employees encountered were German or foreign employment relationships (request for the submission of posting certificates).

If some or all of the documents that you are required to surrender are in the possession of other individuals (such as tax advisers) you must, as part of your obligation to cooperate, make it possible for customs officials to have access to them.

If you fail to cooperate during such inspection, that is, if you

• are in breach of your obligation to provide information, or
• are not carrying the identity documents required by legislation, or
• do not surrender such documents to the customs authorities on request,
  

you are committing an administrative offence, and can be fined.