Many people do not know the legal differences between “schooling” and “employment”, which is important for applicants /students and families offering an opening in their house.  Further to that, the terms “nanny” –  “aupair” – “caregiver” are used interchangeably.  While it may appear, that all provide the same level of (household) assistance, this is actually a misnomer, leading to misunderstanding. There are functions & engagements, which do not require further training and schooling, because they just require normal human instinct. Such engagements are “aupair”, “nanny” or “housekeeper”. “Caregiver-4-elderly” is different, its comparable to a registered nurse. Both functions have a mandatory schooling & training under professional supervision in registered facilities under European Union Directives (EC). There is no such directive in USA & Canada comparable to the EC directive regarding cargiver-4-elderly.

1.)       Schooling

In EC, USA, and Canada, schooling is a designation for a program, which is not intended to provide an independent profession, however basic broad knowledge in a particular field which is not directed to specific economic reward or practical working experiences. Schooling comes on the first place, not production, providing services, or financial earnings. Schooling can cover issues e.g. attending university, research centres of non profit org., YOGA, cooking, nutrition, languages, culture, or music. Schooling can be provided by official sites, e.g. secondary schools in combination with practical work (e.g. in Switzerland , Austria) or state run universities. There are certain requirements for admission in  training by state facilities. Not every applicant has access to official schooling. There are also private institutes providing schooling. Usually, secondary schooling is required, i.e. at least a combination of 12 years of primary and secondary schooling. Universities have their own requirements for admission. Schooling can be supported financially by scholarship form the school or third parties. This is not regarded as being a salary in terms of employment. It’s a material compensation, exempted from tax and contribution to social security – at least in Germany (social act SGB IV §14). In the USA, scholarships under F-1 visa are also exempted from tax and social security. Similar regulations one can find in other countries.Under certain circumstances, students are allowed to be employed along their official schooling with universities in Germany, according to employment act. Usually, the employment is limited to 20 hours per week, and subjected to tax and social security. In such a case, they must be registered with the German social security system (Deutsche Rentenversicherung), which the employer has to do according to social law (SGB IV §28).

2. Employment

The German legal definition of employment describes it as being an activity especially in an employment relationship. Indications for employment are an activity following instructions and incorporation into the work organization of the instruction provider, in particular, if pay is due or agreed (social act SGB IV §7). There is a plethora of court decisions on the issue of employment versus self employment in Germany. The pension funds are dried out financially, therefore the social security system is always in search of innovative financial funding. Recently the German Federal Social Court ruled, that even medical doctors with own office, doing extra duties, are compulsory contributors of the German Pension Fund. Same ruling applies to other member states of the EC.

The employment act is a very important legal act, because violation, i.e. avoiding of the employment regulation, and “saving” the compulsory contribution to the social system,  is a criminal offence according to German criminal code (StGB §262). Both, illicit employer and illicit employee can be persecuted by criminal law, and heavily fiend. In Germany the custom officers are responsible for checking work papers of employees. They are allowed to enter facilities and check the work papers of “workers”, such as ID, residence permit, registration to the collecting office of the social security system. In Germany, Austria and Switzerland, the employer has to register the “worker” with one of the numerous non-private Health Insurances. They are autonomous insurances under government control. In Germany, they are called the “collecting agency” (Einzugsstelle according to social act SGB IV §28ff).

The workers are actually insured i.e. health insurance (according to social act SGB V), caregiving insurance (SGB XI), pension fund (SGB VI) , and accidents due to work (SGB VII) by picking up the actual work. No sooner that they start work, and then they are regarded as being employees by the law, not by registration.

Member states of the EC have a special caregiving insurance, which is different from the USA, Canada or Australia, lacking completely from Latin- as well as Central America. The caregiving insurance of the EC provides help to members, who are in need of help for their dailies. Under certain circumstances, persons providing help within the German caregiving insurance system (SGB XI), are exempted from compulsory employment, social security contribution and income tax, up to a limited amount of compensation, they receive from  the German social security system. They are regarded as substitute caregivers according to social act (SGB XI §39, i.e. “Ersatzpflegeperson”).  Further to that, the employer has to obey a whole battery of employee’s protecting acts, such as minimum wages act (Mindestlohngesetz, i.e. 9,15 EUR/hour before tax in 2019), safety on work act (Arbeitssicherheitsgesetz), daily work-time limiting act (Arbeitszeitgesetz, i.e. 10 hours/ day),  federal residency act (AuslaenderGesetz), employment act (BeschaeftigungsGesetz), just to name the most relevant acts.  However, the minimum wages act does not apply to all people, being “active” on the market. There are legal exemptions from minimum payment according to Article 22 of German minimum wages act. Similar exemptions are present also in other countries. Trainees or interns are not subject to the Minimum Wage Act under the conditions of German minimum wages act Article 22, sentence 1. If they are subjected to an internship compulsory on the basis of an educational provision, a schooling regulation, a higher education provision or as part of an education at a legally regulated professional board, they are not subjected to minimum wages act. A fair compensation can be agreed, however is not mandatory. Further, the minimum wages act does not apply to services under the German social act of caregiving (SGB XI §19). Both, employer and employee have to pay the mandatory fees to the German social security system in equal parts. In general, there are approximately 35% deductions form gross wages, which the employer has to forward to the collecting agency and tax office.  Further, the employer must withhold the income tax from the agreed salary and submit it to the tax office. In German tax act, there is a minimum amount of gross earnings, which is free of tax, i.e. approximately 9.500,– EUR (2019). Under certain legal circumstances, the tax payer can claim his paid taxes from the tax office by himself at the end of the tax-year as a legal refund (e.g. Austria), if the earnings were the same or less than the minimum tax-free-earnings. Under certain circumstances, extra paid compensation by the provider / employer can be free of mandatory social contribution and tax, i.e. compensation of bed & breakfast, travel expenses.

In order to qualify for employment in Germany, the applicant must be a citizen of Germany or a member state of the EC, i.e. must hold a passport of Germany or must be a resident of member states of the EC. Citizen of member states of the EC are eligible to come to Germany for temporary work on a “A-1” document, i.e. up to 2 years, , issued by the social security system of their home country (EC Directive 1408/71 , dated from 14.06.1971, and EC Directive 883/2004, dated from 29.04.2004). Then they are exempted from compulsory contribution to the German social security system and German tax. They must pay the compulsory  “contributions” at the state offices of their home country. In their home country, they can register as employee or being self employed. The legal system of the country of employment (e.g. Germany)  is legally prevented from judgment on the status of employment. In other words, the German legal system must accept the A-1 document issued by other member states, with all their provisions, as the German Federal Constitutional Court ruled.

Aliens from outside of the EC must have a work visa, issued by the German Embassy of their home country, prior to entering of the EC. Its legally blocked to come to Germany on a tourist visa, and then apply for a work visa. The application for employment is a complicated administrative process. In general, work permits are not issued for domestic workers, nannies, or caregivers form countries out of EC.

Working while being on a tourist visa in the EC is a criminal offence due to violation of Schengen visa codex, residency act, employment act and act against illegal work, and will be persecuted in most countries of the EC.

3.) Residency status in EC

Open

4.)       Aupair

Legal Definition: In the EC, USA, Canada, and UK an aupair is a designation for a person who is a non professional, non-employee being involved in child care of a family. The experession “aupair” is not legally occupied, however the market understands, whats the meaning of.

The term “aupair” comes from the French word “en pair” meaning “equal to”. Unlike a regular employer-employee  relationship, an aupair is viewed as part of the family. Aupairs come to another country for a “cultural exchange” under  a special visa and desire an opportunity to explore the world. Many of them are young (between 18 to 28) having just recently completed high school or post-secondary education. By working as an aupair, participants not only have the chance to experience the culture of the host country by working very closely with a host family, but are also receive financial compensation (no salary) and travel, when time permits.

Duties: An aupair’s main responsibility is childcare and child-related household duties, learning the language and culture of the host country. There is no formal education for an aupair in Germany, UK, or USA, respectively. Even illiteral persons can be an aupair (not knowing to read or write, no basic high school education). The following chores are done by aupairs, i.e. playing with the children, drive the children to school and leisure activities, cook meals for the kids, keep the nursery clean, wash children’s clothes, help the children with their homework, bring the children to bed, make purchases, empty the dishwasher

Empolyment-Social security-Tax-Immigration:: According to Article 4 of the European Agreement (24. Nov 1969) on aupair contracts, au-pairs should be at least 17 and not older than 30 years. In Germany, aupairs from non-EC / EEA countries (with the exception of Switzerland) as well as from the EC member states Bulgaria and Romania may not yet be 27 years old (§ 20 Employment Act); the minimum age for non-EC / EEA aupairs (with the exception of aupairs from Switzerland) is 18 years. Aupairs are excluded from legal employment in Germany, they are legally not regarded as employees under the employment act and social act (SGB IV §7). However, protective acts on employees do apply to aupairs, e.g. limitation of daily work time to 6 hours/24 hours, 1 day /week is free; host family must provide a free incoming health insurance according to Schengen agreement, or local health insurance; regulation on vacation, pocket money up to 250,– EUR/ month (tax free), private room and complete live-in. The aupair pays for its travel expenses completely by oneself. Such regulations may be different in other states, in particular USA and Canada, because they are independent form mandatory acts of the EC. The host family has to provide the paper work for aupair form outside of the EC, and register the aupair with the residency office of the municipal. The visa procedures are different from such as for nannies and caregivers. Most aupairs are willing to commit for one year, although there are some, who may only wish to work for 6 months, therefore spending the remainder of their time travelling

4.a.)    Aupair, Voluntary Social Year & Employment in Germany

Applicants can apply in their home country for an Aupair visa at the German Embassy and start an Aupair contract with a family in Germany. Alternatively, they can apply for a visa on a social year in an accredited German facility, also at the German Embassy at their home country.  The age limit for applicants on a voluntary social year is currently 29 years in Germany. If the applicant (Aupair) wants to stay in Germany for legal employment in a profession, which is wanted by the German government, then the Aupair / Social Year applicant can apply directly with the Public authority responsible for aliens (Ausländerbehörde) of the city of the place of the Social Year facility in Germany, without all the complicated procedures with the German Embassy in their home country. Basic German language (A1) is mandatory. This alien department usually is located with the municipal. It can issue a visa for the Social Year independent from the German Embassy, however they are not obliged to do that. If the applicant fulfils the legal requirements, i.e. nostrification / acknowledgement of the schooling in their home country, they can start an official training with a registered facility in Germany, e.g. a hospital, in order to become a registered nurse. Support of the training facility is very helpful.  Registered nurses and registered caregivers of the elderly are wanted by the German social system, regardless which nationality they are from. More information on application for a voluntary Social Year one can extract from https://www.pro-fsj.de/de/informationen-f%C3%BCr-drittstaatenangeh%C3%B6rige, in German language.

5.)       Nanny

–synonym: household worker – domestic worker-

Legal Definition: In the EC, USA, Canada, and UK a nanny is a designation for a person who is a non-professional, employee subjected to social security contribution & tax paying being involved in child care of a family. The expression “nanny” is not legally occupied. It can be used by everybody for every thing.

Neither in Germany, nor UK, nor USA, formal qualifications are required to be a nanny. Nanny is a job just like learning-by-doing. Many nannies become a part of their family’s household. Typically, this care is given within the children’s family setting. Nannies are regarded as domestic workers, may live in or out of the house, depending on their circumstances and those of their employers. They can be locals or come from third country. Their primary intention is not learning the language or culture of the country of employment, but simply provide support to the employer similar to a skilled / non skilled domestic worker.

Duties: Typically, a live-in nanny is responsible for the entire care of the children of their employers. This includes anything from washing the children’s clothes, tidying the children’s rooms, supervising homework, preparing children’s meals, taking children to and from school, and taking children to after-school sport and/or activities. The job may include a separate apartment (sometimes called a „nanny flat“) or room, and possibly a car. The work-time of Nannies is limited to the national work-time-act. In Germany the daily work time is a maximum of  10 hours, 6 days a week, however depends on the individual contract. Due to the fact, that nannies are regarded as household-/ domestic workers, there are no legal down regulations in daily work time due to the absent of a legally active collective labour agreement (Tarifvertrag). A live-in nanny is nowadays more common among wealthier families, because live-in nannies often have all their living expenses paid and provided by the employer.

Employment- Social security-Tax-Immigration: In Germany, UK, and USA nannies are employees, and mandatory insured by the social security system. They are tay-payers. The employer has to withhold the income-tax and transfer it to the tax office.

6.)       Caregiver

-synonym: cargiver-4-seniors, geriatric caregiver-

Legal Definition: In the EC a caregiver is a designation for a person who is a professional employee subjected to social security contribution & tax paying, being involved in taking care of a senior citizen or a handicapped person with the need of external help for the dailies. Caregiver is an independent registered profession within the health system. Caregiver is different from registered nurse. A caregiver can also be a self employed person in Germany, under certain legal circumstances.

The expression “caregiver” is legally occupied, i.e. reserved in Germany for a professional person who has completed a compulsory training under the federal geriatric care act (Altenpflegegesetz; AltPflG) with a theoretical and practical program over the period of 1 year or 3 – 5 years, and at the end a theoretical and practical examination in front of government authorized board of caregivers. The schooling and training consists of both, care on helpless person, and domestic work. There are similar geriatric care acts in other member states of the EC. Recognition by German authorities of diplomas of caregiver-4-seniors from other member states of the EC is possible under the German geriatric care act, evidenced by formal qualifications pursuant to Article 3 (1) (c) of Directive 2005/36 / EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ L 255, p. 18), as amended. Those diplomas must be accompanied by a certificate from the home Member State on the level of education for recognition. Minimum requirement for entering the federal schooling program is high school diploma plus secondary education.

Duties: caregiver-4-seniors main responsibility is professional care of elderly and person in need of external help. There is no such learning the language and culture of a host country. In Germany and other member states of the EC a formal education for a caregiver-4-seniors is compulsory by law. The USA, Canada, Latin America as well as Central America do not have such a geriatric care act regulating the schooling of caregiver-4-seniors (geriatric caregiver). The only functioning caregiving-4-elderly-system in Latin America is in Buenos Aires, operated by the Jewish community. In general, on the American continent, non-professional persons, registered nurses, CNA, are doing the job of a caregiver-4-seniors, if any, in terms of learning-by-doing, often without quality assurance control, full of best intention.

Practical & theoretical schooling program: of a caregiver-4-seniors consists of generally recognized nursing science, in particular:

(i) medical-nursing such as functional anatomy, geriatric physiology & pharmacology, disinfection & hygiene, instructions of patients, comprehensive and planned practical & theoretical care such as physiotherapy.

(ii) participation in the pharmacological treatment of sick old people, including the execution of medical prescriptions, together with CNA, registered nurse and family physician

(iii) preservation and restoration of individual abilities in the framework of geriatric and gerontopsychiatric rehabilitation concepts,

(iv) health care including nutritional counseling,

(v) the comprehensive accompaniment of dying,

(vi) guidance, advice and support of care helpers who are not nurses,

(vii) the care and advice of elderly people in their personal and social affairs,

(viii) helping to maintain and activate independent living, including the promotion of social contacts

Employment – Social security – Tax- Immigration: Due to the fact, that caregivers are regarded as employees, the full program of mandatory social contribution, as well as tax paying applies to their profession. If the applicant is not a citizen of a member state of the EC, a special work visa is mandatory. There are special requirements for work visa in the EC. In general, work visa are not issued by the German embassies. There is a big shortage of caregivers-4-elderly in the EC. However, it`is even difficult for the German Secretary of State for Health, to “import” registered nurses and caregiver-4-elderly form outside of the EC, e.g. Mexico or the Philippines (2019). He needs the agreement from the Secretary of State for Foreign Affairs, who issues the work visa, which is difficult to obtain.

 7.)           Schooling: “caregiver-4-elderly & housekeeping”

Duties: Students have to follow the schooling program agreed; practical & theoretical schooling program of a caregiver-4-seniors consists of generally recognized nursing science as described above, however shortened.

 Employment- Social security – Tax – immigration: Schooling is exempted from the employment act, i.e. no mandatory social contribution and tax paying. There is no legal requirement, special permit, or visa for schooling, entering the EC, USA, or Canada. Applicants can enter legally, if exempted from visa-requirements, and stay for no longer than 90 days in EC, i.e. Germany. They must have an exit-ticket and a Schengen-Heath-Insurance, covering the entire visit of no-more-than-90-days. The list of visa-free entrance to SCHENGEN-countries, e.g. Germany can be obtained from the website of the Schengen Visa Office:

https://www.schengenvisainfo.com/who-needs-schengen-visa/

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