Attorney von Burgsdorff and attorney Elger-Günther talking in the corridor of their shared office building.

Practice areas

Employment offences

Allegations arising from an employment relationship are, as a rule, directed at the employer. They usually begin with an inspection by customs at the business, which can turn into an investigation under section 266a StGB.

section 266a StGB · SchwarzArbG

What it is about

Employment criminal law (Arbeitsstrafrecht) mainly concerns the employer. It covers allegations that are directly connected with the workplace and are sanctioned either as a criminal offence or as a regulatory offence.

The sanctioning provisions are not found in the Criminal Code (StGB) alone, but in a large number of ancillary statutes: the Tax Code (AO), the Temporary Employment Act (Arbeitnehmerüberlassungsgesetz, AÜG) and the Social Code (SGB III and SGB IV). Because the legislature keeps amending this area, the legal position changes comparatively often.

The following allegations are frequent:

Withholding and misappropriation of wages (section 266a StGB)
Breaches of the Posted Workers Act (Arbeitnehmerentsendegesetz, AEntG)
Regulatory and criminal offences under the Act to Combat Undeclared Work (Schwarzarbeitsbekämpfungsgesetz, SchwarzArbG)
Breach of trust and corruption offences to the detriment of the company
Other regulatory offences connected with employment law, for instance under the Working Hours Act or occupational safety law

How suspicion arises

The usual starting point is an inspection by the customs unit for the control of undeclared work (Finanzkontrolle Schwarzarbeit). The customs authorities examine whether reporting, contribution and record-keeping duties under social insurance law have been complied with (section 2(1) SchwarzArbG).

They may enter business premises and land during business hours and inspect documents and data there; residential premises are expressly excluded (section 4(1) SchwarzArbG). When checking individuals, they may obtain information about employment relationships and verify personal details (section 3 SchwarzArbG).

An inspection is not yet a search. Once the matter becomes an investigation, the rules of the Code of Criminal Procedure apply. Statements made on the premises in order to clarify matters later form part of the file.

What we do for you

You should not make any statements on the substance to customs, the police or the public prosecutor office. You may remain silent and may consult defence counsel at any time, including before any questioning (section 136(1) sentence 2 StPO). Only after access to the case file has been granted will a decision be made as to whether to make a statement on the substance of the matter.

Immediate take-over after a customs inspection, a hearing letter or a summons
Inspection of files and review of payroll documents, notifications and records
Examination of whether an employment relationship existed and who was responsible within the business
Separation of regulatory offence and criminal offence: which allegation is actually being made
Coordination with the tax adviser and with parallel proceedings at customs and the tax office

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Arrested or questioned? Call us before you make a statement.

Frequently asked questions

What am I accused of under section 266a StGB?

The allegation is that social insurance contributions were not paid although they were owed. The provision is addressed to the employer. Whether an employment relationship within the meaning of social insurance law existed at all is often the decisive question and can only be assessed after access to the case file.

Is undeclared work always a criminal offence?

No. A large proportion of breaches are dealt with as regulatory offences carrying a fine (section 8 SchwarzArbG). The matter becomes a criminal offence where social insurance contributions are withheld (section 266a StGB), where wage tax is evaded (section 370 AO) or where someone is deceived and thereby suffers loss (section 263 StGB).

Do I have to explain everything to the inspector?

Duties arising from the inspection procedure and the rights of an accused person in criminal proceedings are two different things. As soon as an initial suspicion against you is in the room, section 136(1) sentence 2 StPO applies: you need not comment on the substance and may consult defence counsel beforehand. Clarify your role before you explain anything.

Which statutes apply alongside the Criminal Code?

The sanctioning provisions of employment criminal law are spread across several ancillary statutes, among them the Tax Code, the Temporary Employment Act and the Social Code (SGB III and SGB IV). Because the legislature frequently intervenes here, the legal position changes comparatively often.

This information is general in nature and does not replace advice on an individual case.

Guide