Temp-agency work (Leiharbeit or Zeitarbeit) runs on a triangle: you are employed by the agency (Verleiher) but work under the direction of the user company (Entleiher). The Arbeitnehmerüberlassungsgesetz (AÜG) polices that triangle with two hard limits employers routinely test: after 9 months at the same user company you are entitled to equal pay with its permanent staff, and after 18 months the assignment must end — otherwise the law can turn you into the user company’s own employee. Both rules are worth real money, both are widely under-enforced, and both come with short deadlines and formal traps.
The triangle: agency, user company, you
Your employment contract is with the agency: it pays your salary, grants your vacation, issues dismissals and needs a state license (Erlaubnis) to lend workers at all (§ 1 AÜG). The user company borrows your labor and directs your day-to-day work. Two protections flow from this structure:
- The agency bears the assignment risk. Between assignments — „bench time” — it must keep paying your agreed remuneration; this cannot be contracted away (§ 11 (4) AÜG). Clauses making pay dependent on placement, or forcing vacation into every bench period, are invalid.
- No license, no lawful lending. If the agency has no license — or a labelled „service contract” (Werkvertrag) is in truth hidden labor leasing without the required disclosure — your agency contract is void and employment with the user company is deemed to exist from day one (§§ 9, 10 AÜG).
Equal pay: the 9-month rule
The statutory principle is equal treatment from day one: the agency must grant you the essential working conditions, including pay, of a comparable employee of the user company (§ 8 (1) AÜG). In practice, nearly all agencies contract under the sector’s collective agreements (iGZ/GVP tariffs), which are allowed to deviate downward — but only temporarily:
- After 9 months at the same user company, equal pay becomes mandatory regardless of the agency tariff (§ 8 (4) AÜG).
- Where a sectoral surcharge agreement (Branchenzuschlagstarifvertrag) applies — metal, chemicals, logistics — pay ramps up in steps from week 6, and the deviation may run longer, but must reach the tariff-defined equivalent pay no later than after 15 months.
- Breaks between assignments to the same user of 3 months or less do not reset the clock — periods are added together. Rotating workers out for a few weeks to restart the count miscounts the law.
„Pay” means the full package a comparable permanent employee receives: base salary, allowances, shift premiums, bonuses, benefits in kind. To quantify it, you have information rights about the conditions of comparable staff at the user company (§ 13 AÜG). Equal-pay differentials are classic victims of the three-month forfeiture clauses in agency tariffs — assert them in writing early (see Ausschlussfristen).
The 18-month cap on assignments
An agency may not assign you to the same user company for longer than 18 consecutive months (§ 1 (1b) AÜG). Again, gaps of 3 months or less between assignments are bridged and the periods add up. The cap is worker-related, not job-related: swapping you into a different role at the same user changes nothing.
Deviations exist, but only through collective bargaining of the user company’s sector: a sector collective agreement, or a works agreement based on an opening clause in one, can extend the maximum (24, 36, even 48 months appear in practice). A mere agency tariff cannot. If you are past 18 months and nobody can show you the specific user-sector provision that allows it, the cap has likely been breached.
What happens when the cap is breached: the § 10 fiction
Exceeding the maximum assignment duration has the same radical consequence as unlicensed or hidden lending: your contract with the agency becomes void and an employment relationship with the user company is deemed established by law (§ 9 (1) Nr. 1b, § 10 (1) AÜG) — on the working conditions applicable at the user, typically including its (usually better) pay scheme and, after the qualifying period, full KSchG dismissal protection there.
You can prevent this outcome if you prefer to stay with the agency — by submitting a Festhaltenserklärung within one month, presented in person at an Agentur für Arbeit for identity verification before it reaches the agency or user (§ 9 (2)–(3) AÜG). Pre-signed „objection” forms collected in advance are invalid. In our experience, objecting is rarely in the worker’s interest — the fiction usually upgrades your position.
Equal treatment beyond pay
- Facilities: the user company must give you access to its communal facilities and services — canteen, childcare, transport — on equal terms with its own staff (§ 13b AÜG).
- Vacancies: the user must inform you about open permanent positions, e.g. by general posting (§ 13a AÜG) — the statutory nudge toward being hired directly.
- Strike replacement ban: the user may not deploy you as a strike-breaker in an establishment directly affected by industrial action (§ 11 (5) AÜG). You are entitled to refuse such work without consequences.
- Working time and safety: on site, the user company owes you the same working-time and safety standards as its own staff.
Who to sue — agency or user company?
Getting the respondent right matters, because claims fail against the wrong corner of the triangle:
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Wage and equal-pay claims → the agency
Salary, bench-time pay, equal-pay differentials, vacation pay: your contractual employer is the agency, so it is the defendant. Watch the 3-month forfeiture clauses.
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Dismissal → the agency, within three weeks
Dismissals are issued by the agency and attacked with a Kündigungsschutzklage against it. „No assignment available” is not automatically a valid ground — bridging such gaps is precisely the agency’s business model.
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§ 10 fiction claims → the user company
Where the 18-month cap was breached or the lending was unlicensed or hidden, you sue the user company for a declaration that an employment relationship exists with it.
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Social contributions: both are liable
For unpaid social insurance, agency and user company are liable side by side — relevant when an agency slides into insolvency.
If the agency dismisses you, the three-week deadline applies as usual, and the same lawsuit can be combined with equal-pay and fiction arguments — often the point where settlements improve sharply. Details on the mechanics in our article on the Kündigungsschutzklage.
Worked example
Ionuț works through an agency as a machine operator at a Cologne manufacturer: agency pay €14.80 per hour, 152 hours per month (≈ €2,250 gross). Comparable permanent operators earn €18.90 including shift premiums. He has been on site 22 months, interrupted only by a 6-week „break” inserted after month 12.
- Equal pay from month 10: the 6-week gap does not reset the count (≤ 3 months). Differential: €4.10 × 152 hours = €623 per month. Under the tariff forfeiture clause the last 3 months (≈ €1,870) are safely recoverable; further months are arguable where the clause was not validly incorporated. One letter at month 10 would have preserved the full run — over €8,000.
- The 18-month cap was crossed at month 19 (bridged periods count together; no user-sector tariff extension exists here). Result: deemed employment with the user company at €18.90 — roughly €2,870 gross per month — plus its 30-day vacation scheme. To „end the assignment” the manufacturer now needs a real dismissal with KSchG grounds; the dispute settles with a permanent takeover on the user’s pay scale.
Frequently asked questions
Can the agency park me on „standby” without pay between assignments?
No. The agency carries the assignment risk and must pay the agreed remuneration during bench time (§ 11 (4) AÜG); this cannot be waived. Forcing you to burn vacation days for every gap is likewise impermissible as a systematic practice.
How do I find out what comparable permanent staff earn?
Ask — in writing. The agency must inform you about the essential working conditions of comparable employees at the user company, and the user company itself is subject to information duties under § 13 AÜG. Refusal to answer is itself a strong signal for the labor court.
The user company wants to hire me directly, but my agency contract has a penalty clause. Valid?
Clauses that prevent or penalize you for taking a permanent job with the user company are invalid (§ 9 (1) Nr. 3–4 AÜG) — the AÜG deliberately keeps the path to direct hiring open. Placement-fee arrangements exist between agency and user, but they are not your problem.
Do I count toward the user company’s headcount?
For several thresholds, yes — long-term temp workers count toward the user’s workforce for works-council and co-determination purposes; if the § 10 fiction applies, you count as its employee outright, with tenure from the deemed start.
I was „lent” under a service contract (Werkvertrag), not labelled as Leiharbeit. Does the AÜG protect me?
If you actually worked integrated into the third company’s operation under its instructions, that was hidden labor leasing. Without the AÜG’s disclosure requirements being met, the § 10 fiction can apply from the start of the deployment — deemed employment with the company where you really worked. These cases reward early legal review.
Can I be deployed during a strike at the user company?
No — the user may not use you as a strike replacement in a struck establishment (§ 11 (5) AÜG). You may refuse strike-breaking work; disadvantaging you for the refusal is unlawful.