Overtime is common on Google

Overtime - when and how much can you demand?

According to a study by the Institute for Employment Research, employees in Germany worked more than 1.7 billion hours of overtime in 2016. Of this, however, only just under 821 million hours were remunerated. These figures raise the question of what overtime actually is, when and to what extent it can be required, and whether employees are entitled to payment.

What is overtime?

In practice, the terms overtime and Extra work often used synonymously. There is no generally applicable definition for the two terms. Basically, it can be said that there is “overtime” when an employee works more than he should contractually have to. Overtime, on the other hand, means exceeding the agreed working hours. In the end, it depends on the context and the corresponding regulations.

Is there an obligation to work overtime?

A legal duty There is no such thing as overtime in Germany. If there is no contractual obligation to work overtime and if this is not regulated by a works agreement or collective agreement, the employee is not obliged to work overtime.

Only in emergencies or catastrophes can the employee Loyalty Duty be obliged to work overtime towards the employer. This is e.g. This is the case, for example, in exceptional cases (e.g. threatened spoilage of food) or in the short-term defense against dangers for the company (flood, fire, etc.). Such an emergency does not exist, however, if an operational bottleneck arises due to a reluctant hiring policy of the employer or the like.

If the employer is entitled to demand overtime, this must also be reasonable for the employee. This means that the employer must take into account the personal situation of the employee, the operational requirements and the general principle of equal treatment. In particular, overtime must not be "unreasonably" distributed among the employees. When ordering overtime, the employer must also observe the upper limits of the Working Hours Act. The daily working time of eight or a maximum of ten hours may not be exceeded, including overtime.

If a works council is formed, the arrangement of overtime also requires the prior consent of the works council (see Section 87 (1) No. 3 BetrVG). If the works council participation is disregarded by the employer, the employee can refuse to work overtime - labor law sanctions such as warnings or dismissal would be ineffective in such cases.

(How) are overtime paid?

If the employee stays at the workplace longer than usual, this does not automatically lead to an obligation on the part of the employer to remunerate the additional work performed.

Overtime is only to be remunerated if it is attributable to the employer. This is the case if the employer has expressly ordered overtime or if he expresses that he approves or tolerates additional work by his employee. Unauthorized determination and implementation of overtime by the employee (e.g. in order to receive higher remuneration) is not permitted.

If, on the other hand, the overtime is attributable to the employer, there is generally an obligation to pay - even if there is no express (employment contract) provision for this. Because even without a corresponding regulation, the case law assumes that remuneration for overtime according to § 612 BGB is tacitly agreed if the service can only be expected in exchange for remuneration under the circumstances.

However, if there are contractual regulations (e.g. compensation for overtime through free time), these must be given priority. Employment contract regulations are also permissible, according to which a certain number of overtime is considered to be included in the salary. The case law has not defined any limits: in practice one should Flat rate compensation for overtime record only 10 to 15 percent of actual working time (e.g. 20 overtime hours per month based on a 35-hour week). Since the introduction of the Minimum Wage Act, it must also be ensured that the minimum wage is also adhered to with the flat-rate compensation for overtime.

Another peculiarity applies to employees whose salary is significantly above the average salary of their colleagues or above the contribution assessment ceiling of the statutory pension insurance. Here, the case law assumes that the overtime is usually already paid for with the salary.

Incidentally, overtime is not automatically subject to a surcharge: overtime surcharges or the like are only owed if B. in the employment contract or - in practice very often - in collective agreements.

Employment contract regulations

In order to avoid misunderstandings and ambiguities, it is recommended to use the Dealing with overtime in the employment contract to regulate. Such a regulation should contain the basic obligation of the employee to work overtime - and the corresponding remuneration modalities (flat-rate compensation, remuneration or compensation for time off). This means that both employers and employees are in any case informed of what is in store for them in terms of working time law.

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THE AUTHOR__________________________

Anna Huberis Lawyer at the international law firm Hogan Lovells in Munich. Hogan Lovells advises companies worldwide and is one of the leading law firms in Germany according to national and international legal directories.