Claims for additional contributions – also for employees?

In 2012, record sums were collected by the German pension insurance's company audit service. In the event of a case, do employers also have to pay for the additional contributions due?? Or is only the employer obliged to make any additional payments?

The audit of social security contributions

In the context of a company audit, the subsequent calculations of the auditors are made up of underpaid and/or unpaid total social security contributions. As a rule, such mistakes happen to employers rather accidentally, do not serve the purpose of enrichment. In the event of an additional contribution claim, it is not always just the employer who has to bear the entire contribution burden. For to a limited extent, a subsequent withholding of employee shares is also possible.

3 accounting periods may be withheld

In principle, the employer can retroactively withhold the insured persons' shares of the last 3 payroll periods that have been settled. If, for example, it is determined during payroll accounting in June that contributions have not been deducted, the employee contributions for the months of May, April and March may be withheld with the June payroll. Subsequent withholding beyond the 3 months, i.e. for more than the 3 payroll periods, is only feasible to a very limited extent.

Longer periods

Longer periods are possible only without the fault of the employer. This means that the withholding must have occurred without the employer being at fault. An oversight is not sufficient here. If, in cases of doubt, no information is obtained from the collection agencies to assess the obligation to pay contributions or insurance, this is already the fault of the employer.

On the other hand, the regulation applies if the insurance company has provided incorrect information or the employee has provided incomplete or incorrect information, for example in the personnel questionnaire. In these cases, there is a breach of the duty to cooperate.

Violation of the employee's duty to cooperate

If the employee has intentionally or grossly negligently violated his duty to cooperate, the employer has a right of recourse even outside of the monthly pay statement. Even if the employment relationship has already been terminated, the employer has the right of recourse.

However, the employer has no possibility to claim the employee contributions from the employee. This also applies in the case that the employment relationship has already ended or payments of wages are no longer made.

Back pay

If wages have to be paid in arrears, for example because the implementation of a collectively agreed increase in wages is only carried out retrospectively and thus an arrears payment is made, this is not to be regarded as an omitted deduction. For the employer, this means that he must pay the amounts in arrears for the past period – just as if the remuneration had been paid on time. The employee contributions can also be withheld as if they had been paid on time.