Maternity protection for freelance journalists in broadcasting

BSG: "Freelancers" are legally considered as employees
Many "freelancers" of public service broadcasters are entitled to maternity protection. This is the indirect consequence of a verdict of the Federal Social Court (BSG) in Kassel announced on Tuesday, September 26, 2017 (ref .: B 1 KR 31/16 R). Allegedly "freelancers", for whom the public broadcasters pay social contributions, then legally qualify as employees. As the BSG has decided, the broadcasters must therefore include their "free" in the maternity levy "U2".

(Image: stanislav_uvarov / fotolia.com)

This confirmed the Kassel judges the position of the German Pension Insurance Association. This had here from the Hessian Broadcasting for the years 2006 to 2008, a total of just under 200,000 euros surcharge demanded.

The pay-as-you-go background is the duty of employers to pay the allowance during maternity leave six weeks before and eight weeks after birth, as well as possibly during a pregnancy-related prohibition on employment. From the U2 the companies receive this again.

Originally, the surcharge was intended only for the protection of women in small businesses, but from 2006 it was extended to all employers. This was previously demanded by the Federal Constitutional Court, so that companies do not incur any pregnancy-related disadvantages by employing women. The U2 is also levied on the income of men.

This also applies to the allegedly freelance journalists in public broadcasting. Such employment relationships are common there. In spite of the contractual relationship described as "free", the stations deduct social security contributions.

According to the Kassel ruling, it follows that these are employees. Therefore, the stations would have to participate as an employer at the U2.

The right to maternity benefits arises from the Maternity Protection Act and is therefore of a labor law nature. Claims for "free" journalists, however, automatically result from the fact that according to the BSG they are employees. The health insurance companies would get corresponding services of the transmitter then reimbursed from the U2.

At least in part, freelance journalists already have collectively agreed entitlements to similar benefits, such as Mitteldeutscher Rundfunk.

To what extent women can now assert legal claims retroactively, the BSG did not have to decide. Since these are employment-law claims, here are usually tariff exclusion periods or, alternatively, the general statutory limitation period of three calendar years. mwo / fle