Working Student Contract: the ins and outs

In addition to studying, many students work part-time, in many cases in order to gain valuable work experience, gain professional expertise and earn something extra while studying. For employers, employing working students offers several advantages. Working students are usually motivated and pre-qualified workers who are actively involved in the company and may remain with the company beyond their studies. The basis for this cooperation is the working student contract — and this should not contain any legal pitfalls.

Employers must consider a number of things when employing students. For example, not every student is eligible to work as a working student. In this article, we explain the requirements for working student employment, which employment regulations the employer must take into account and what content the working student contract should contain.

{{banner-three}}}

What is a working student contract?

A working student contract is a special form of employment contract. It regulates the conditions of cooperation between the student and the employer (e.g. working hours, remuneration, vacation entitlement, start and end of the employment relationship) as well as their rights and obligations. The legal basis for this can be found, among others, in section 6 paragraph 1 No. 3 Fifth Social Code (SGB V) and section 27 paragraph 4 No. 2 SGB III.

In principle, the same employment law provisions apply to the employment of working students as to “normal” employees. This is because a working student who, in addition to his full-time studies, is a part-time worker from the point of view of employment law. This means that working students are entitled to vacation, continued payment of pay in the event of illness and other employer benefits, among other things. However, the working student contract also regulates some special framework conditions that relate exclusively to the employee's student status.

A working student contract is usually concluded when a student exceeds the earnings limit for minor employment (since January 2024:538 euros per month for a mini-job), i.e. earns more from his working student activity, and the employment lasts longer than three months or 70 working days per calendar year.

But care should be taken here in general: Not every student can be hired as a working student.

Who can work as a working student?

In order for the employer to be able to conclude a working student contract with a student, various requirements must be met. These are typically as follows:

• enrolled as a regular student at a (technical) university in Germany or abroad is (section 6 (1) No. 3 SGB 5) and can prove this with a current enrollment certificate (student status),
• no longer than 25 semesters studied
• is not currently in a vacation semester or is studying part-time and
• So far, not all certificates/exams required for graduation have been completed.

Tip: The HR department should always obtain a valid enrollment certificate before hiring a student as a working student. It should also expressly inform the employee that HR must be informed immediately if the student status changes.

However, when working as a student trainee, the employer must also beware of the maximum weekly working time so that the employee concerned has Status as a working student. As a working student status appleis when:

• the working is carried out in addition to studying (the focus must remain on studying, employment may only be a secondary activity),
• the student works no more than 20 hours per week during the lecture period and
• the 20-hour limit in not exceeded more than 26 weeks (182 calendar days) per time year (not calendar year!).

Important to know: If a student has several secondary jobs, for example a working student job and a mini-job, the various activities must not exceed the maximum weekly number of hours of 20 hours if the status as a working student is to be retained. Conversely, this means that a working student whose working student activity already includes 20 hours of work per week risks losing the working student status if they pursue further secondary jobs. This in turn has an effect on social security obligations (more on this below). If the employer therefore wants to check whether the working student exceeds the 20-hour limit, he should also take into account the student's working hours of other possible occupations and independent activities.

Difference between working student and intern

While working students work part-time up to 20 hours a week and have a minimum wage claim, interns often work full time, i.e. 40 hours a week. However, there is only a minimum wage claim for internships in certain cases (more about this in our blog post with tips and advice for HR and employers on internship contracts).

An internship focuses on continuing education: During his time at the company, the intern should primarily acquire practical professional knowledge and orient himself professionally or gain initial insights into the working world. The employer must therefore not schedule him as a regular worker for everyday tasks. Unlike an internship, a working student takes on and completes specific tasks. The working student activity is therefore not for professional orientation. The working student earns money and has to complete certain tasks in order to do so. However, students also usually gain professional experience during a working student job and get to know the work and processes in a company better.

Which employment regulations must the employer take into account in a working student contract? 

If the requirements for working student employment are met, the job is considered a normal employment. This means that the same employment regulations and laws apply with regard to vacation entitlement, continued payment of pay in the event of illness and dismissal as with normal employment contracts. There are special features though, in particular with regard to social security.

Social security regulations for working student employment 

The social security obligation for working student employment is regulated separately in order to give students the opportunity to work while studying without being subject to full insurance (“working student privilege”). But working student employment also has some advantages for employers.

If the above requirements for status as a working student are met, the working student activity is free from statutory health- , long-term care and unemployment insurance (section 6 para. 1 no. 3 SGB V, 1 para. 2 p. 1 SGB XI, § 27 para. 4 p. 1 no. 2 SGB III). The working student therefore does not receive health and long-term care insurance through the employer, but generally remains in the much cheaper family insurance (provided that the claim persists) or in statutory or private student insurance. This is because, from the point of view of health insurance companies, the working student is still a “full-time” student. As a result, there are no social security contributions for either the employer or the employee in these areas.

Pension insurance exception

Working students are, however, subject to statutory pension insurance. The general contribution rate is currently 18.6% of gross salary (as of March 2024) and is borne equally by the employer and half by the working student. In contrast to minor employment (mini-job), an exemption from pension insurance obligations is not possible for working students.

While the employer must pay the full pension insurance contribution of 9.3% as soon as the employee's pay exceeds 538.01 euros per month, the employee share for the working student may be lower if his monthly income is in the transition range of 538.01 to 2,000 euros (midi job; as of March 2024). As a reminder, the income limit for mini-jobs is 538 euros per month. However, this transitional pension contribution provision only applies if the working student does not exceed the monthly income limit of 2,000 euros (even if several jobs are carried out in parallel).

Important: Students who are employed more than marginally and regularly work more than 20 hours a week are generally subject to social security contributions. In this case, it is assumed that employment is paramount, i.e. the student is a regular employee and that studies are only secondary. Both the employer and the student as an employee will then have to pay the usual contributions to health, long-term care, unemployment and pension insurance.

Working time limits for working students

As mentioned, a working student may work a maximum of 20 hours per week during the lecture period (even if he has several jobs). However, there are special features for working during lecture-free hours, in the evening and at night or on weekends. During the semester break, a working student can in principle be employed up to 40 hours a week. The so-called 26-week rule applies here.

What is the 26-week rule?

Accordingly, a working student may only exceed the weekly working time of 20 hours for a maximum of 26 weeks (182 calendar days in total) per year if this is done by working during the semester break, in the evening, at night or on weekends — i.e. outside regular study hours. This is the only way to ensure that employment is subordinate to studies and that the time requirements for working student status are met and therefore apply to the employment relationship.

In the working student contract, the employer should therefore specify in detail which working hours he agrees with the student during the semester or during the semester break.

What are the rules for overtime?

Since the same employment law conditions apply to working students as to other employees, the employer can only order overtime if he has contractually agreed this with the working student. Exceptions are possible if an operational emergency makes it absolutely necessary to work overtime or if the working student volunteers overtime.

In principle, however, it should be noted that the working student should not work more than 20 hours per week with overtime (up to 40 hours during the semester break). If the 20-hour limit is exceeded due to overtime, this should only be worked on weekends, evenings, nights or during the semester break. The permitted number of additional working hours is essentially based on the 26-week rule and the statutory maximum working time.

Remuneration in a working student contract

Working student employment falls under the Minimum Wage Act (MiLoG). This gives working students a entitlement to the statutory minimum wage (Section 1 MiLoG). As of January 2024, the employer must therefore pay a working student the minimum wage of 12.41 euros per hour from the first day of employment. If the employer fails to comply with this obligation, he faces a fine. Irrespective of this, the employer can also pay a working student a higher hourly wage. The regulations on social security obligations remain unaffected.

In addition, there are minimum wage rates in some unionized sectors. This means that the employer may not pay the working student any lower hourly wage than a comparable, permanent employee in the same sector.

Be careful with overtime: Working students are generally entitled to compensation for overtime worked. However, the employer has the option of contractually agreeing that overtime will be offset by additional time off. If there is no such agreement, the working student may insist on payment of overtime. There is a risk that the 20-hour limit will be exceeded and that the working student will be classified as a regular employee. In this case, the salary and remuneration of working students may incur additional wage costs and the employer may have to pay these back.

Vacation entitlement for working student employment

Like other employees, working students have statutory vacation entitlement under the Federal Leave Act (Section 1 BURLG). In the case of full-time employment, every employee is entitled to at least 20 vacation days per year. However, since working students usually work part-time and therefore have the status of part-time employees, vacation entitlement depends on the number of working days per week.

It doesn't matter how many hours a working student works per day. Vacation entitlement may be higher in companies bound by collective agreements.

Continued payment of remuneration in the event of illness for working students

According to section 3 Continued Pay Act (EntGfG), working students are also entitled to continued payment of their salary in the event of illness for a maximum period of six weeks. The requirements for this are that the employment relationship has existed for at least four weeks, that the working student can prove that he is unable to work and that he is not responsible for the incapacity to work himself. In the event of illness, the working student is obliged to inform the employer immediately and to obtain a medical diagnosis after three calendar days. However, the employer is entitled to request a medical declaration of incapacity for work earlier.

Fixed-term employment contracts

A fixed-term working student contract is generally possible if employer and working student agree on this and the fixed-term is set out in a contract. According to section 14 (4) of the Part-Time and Fixed-Term Act (TzBfG), a time limit must always be agreed in writing. A time limit may be applied with or without factual reason. In the latter case, the usual legal restrictions and limits for a fixed-term without reason apply.

Can the employer extend the working student contract?

Yes, employers and employees can, in principle, also extend a fixed-term working student contract. The distinction between a time limit with or without factual reason is also immensely important in this context (§ 14 TzBfG).

According to section 14 (2) (1) of the TzBfG, it is possible to extend a maximum of three times up to a total period of two years in the event of a time limit wihout reason. Otherwise, the working student may be entitled to permanent employment. The extension must also take place during the existing employment relationship. Even a break of just one day — and thus an interruption of employment — is enough to violate the prohibition on pre-employment. The employment relationship is then considered to have been concluded for an indefinite period.

‍

Termination of working student contracts 

A working student contract can be terminated by both the employer and the working student. If the working student contract does not contain any separate information on the notice periods, the legal deadlines in accordance with section 622 Civil Code (BGB) apply. Accordingly, the working student contract can, with a notice period of four weeks, be duly terminated on the 15th or the last day of a calendar month. In accordance with section 622 (2) BGB, these deadlines are extended with the length of the working student's employment: For example, from a period of employment of two years, there is a notice period of one month at the end of the month.

After a waiting period of six months the general protection against dismissal (section 1 paragraph 1 Dismissal Protection Act (KSchG)) also applies to working students, provided that the other requirements are met.

If a probation was agreed upon at the beginning of the working student activity, both sides can cancel with a shortened period of two weeks during the probationary period.

Important: In the case of a fixed-term working student contract, the employment relationship automatically ends at the end of the agreed term. Ordinary termination in this case, in accordance with section 15 (4) TzBfG, not possible for both parties, unless the working student contract or the collective agreement reserves the right to ordinary termination. The employer or working student can then duly terminate the fixed-term working student contract in compliance with legal regulations.

Can a working student contract be terminated without notice?

For a valid extraordinary (without notice) termination of a working student contract according to section 626 (1) BGB, there must be an important reason, which makes it unreasonable for the employer or the working student to continue the employment relationship until the notice period has expired. However, the termination must generally be initiated within two weeks of the important reason becoming known (section 626 (2) BGB).

{{banner-three}}

What does a working student contract have to contain?

The employer should regulate the following points in the working student contract:

• Start and end of employment: In the case of a fixed-term working student contract, the start and end of the working student activity must be mentioned. In the case of a permanent working student contract, the contract must include the start of the working student activity and a note that the employment relationship is to be concluded for an indefinite period of time.
• Status as a working student: The contract should state that the employee has this status and is obliged to immediately inform the employer if their status changes. A corresponding paragraph in the contract should indicate that a maximum working time of 20 hours per week is agreed on during the lecture period in order to fulfill this status.
• activity: The contract should describe the work expected of the working student, possibly with the addition that the working student is obliged to do “other reasonable work” for the same remuneration.
• Trial period: If a probationary period was agreed upon, the beginning and end of this probationary period must be included in the contract.
• Compensation: Employers and working students can negotiate the compensation themselves. The contract must contain the agreed pay, taking into account the minimum wage requirement for working students.
• working time: The 26-week rule must be observed and the hours worked should be spread over the lecture period and the semester break.
• Vacation entitlement: Working students have a statutory vacation entitlement, but a higher number of vacation days can be agreed upon in the working student contract.
• Behavior in case of illness: The working student contract should clearly state what rights and obligations exist in the event of illness.
• Part-time activities: The contract should regulate the employee's undertaking of secondary work outside of the work with the employer.
• Cancellation periods and conditions: The periods and conditions of notice should be stated in the working student contract, in particular in the case of fixed-term working student contracts, provided that the right to ordinary termination should remain in place.

In addition, other points such as confidentiality clauses or the private use of proprietary hardware and software may be contractually regulated.

‍Tip: In principle, the employer can use a normal employment contract as a template for a working student contract. However, it is important that the contract is adapted accordingly and comprehensively to the requirements of working student work. To avoid costly mistakes here, a standard template should not be used. Twinwin offers numerous legally secure and up-to-date templates for human resources , which you can adapt to the requirements of your company. Of course, this also includes a template for a working student contract. If you (or your HR department) need help creating a working student contract you can always use the twinwin template pool for just 120€ a month . The templates are kept up to date by employment law experts and also include explanatory comments to help you adapt the content. In addition, twinwin's question and answer module provides reliable information about working students.