Special legal features of short-time work

First of all, employers should clearly and comprehensibly document that the work and pay shortfalls that occurred in the respective accounting period are due to the Corona pandemic and are not typical - for example, seasonal or due to the general operating risk - turbulence. If this is based on planning for the current year, it is recommended that a comparison be made with the previous year's business performance.

Furthermore, there must be an effective legal basis for ordering short-time work for each employee named in the application for benefits. If there is a legal basis under collective law (for example, a collective bargaining agreement or a Company agreement), it must be checked whether the employee is actually covered by the scope of the respective regulation. This is particularly important in the case of employees not covered by collective bargaining agreements or senior executives as defined in the Works Constitution Act not the case.

It is also particularly important that the hours actually worked during the short-time working period and to be remunerated by the employer are documented in a complete and verifiable manner. The amount of the actual remuneration resulting from the actual work performed has a direct impact on the amount of the loss of remuneration and thus on the amount of the short-time allowance. However, if there are deviations from the originally reported loss of working hours in the individual payroll periods, i.e. if individual employees experience a higher or lower loss of working hours, this is not detrimental.

This applies until there is no longer any significant loss of work. The time sheets must therefore be kept at the payroll office for later review. Under no circumstances should corresponding time sheets be "adjusted" contrary to the truth or employees instructed not to record hours actually worked.
Another pitfall is the hiring of new employees during the short-time work period. Here, it is essential to check whether there is an important reason for the new hire. This is because short-time allowance can only be drawn for these employees if such a reason exists. Plausible reasons may exist in particular if, for example, the employee in question is a specialist who has been sought for some time and is urgently needed by the company, and who is not readily available on the labor market.

In individual cases, it may be appropriate to Short-time allowance eligibility must be clarified in advance with the employment agency. It should also be noted that new hires agreed after the start of the corona crisis or after notification of short-time working without a valid reason may also have an impact on the eligibility of the other employees for short-time working benefits. This is because it is contradictory if the Employer orders short-time work due to a significant loss of work, but then simultaneously hires new staff.

Finally, requirements regarding the subsequent discontinuation of eligibility for short-time allowance must also be taken into account. Employees whose employment relationship has been terminated or with whom a termination agreement has been concluded are excluded from receiving short-time allowance. Therefore, they may no longer be taken into account when applying for benefits. After all, if the termination of the employment relationship is certain, the bridging of a temporary loss of work intended by the short-time allowance can no longer be achieved.

For the same reasons, the entitlement to receive short-time allowance also ceases if the final decision is made to shut down all or part of the business that is on short-time working. In this case, too, the temporary loss of work required for the receipt of short-time allowance is missing.