The title of section 266 a StGB (Withholding wages and salaries) wrongly suggests that it is punishable if an employer does not pay his employees the salary or wage that is contractually owed. § 266 a StGB, however, rather refers to the employer's obligations to pay social security contributions for employees. Withholding of social security contributions within the meaning of section § 266 a StGB can already be assumed if the corresponding payments to the contribution office are not made in time. In most cases, however, the allegation is one of bogus self-employment. Initially, such criminal proceedings focused often on employment in the construction industry and undeclared work in general, but now such investigations are taking place in all sectors, including gastronomy and healthcare.
Since the law on the minimum wage was amended on 01.01.2015, proceedings have been initiated in this context, as undercutting the minimum wage can also indicate withholding social security contributions. In such cases the investigations are conducted by the Hauptzollamt (a special law enforcement agency), and often both social law and tax law proceedings are initiated at the same time in order to recover the withheld contributions and taxes. The contribution office assesses a late payment fee of 1% for each started month. For this reason, such investigative proceedings must always be handled with an eye to the social law and tax law consequences for the persons concerned.
So far, our law firm has handled well over 100 cases in this area - also involving losses in the millions. If necessary, we work together with other lawyers or tax advisors who specialise in social law and tax law.