What is overtime actually?
Overtime always occurs when employees work more than agreed in the employment contract. The decisive factor here is not whether the overtime feels “normal”, but whether it exceeds the contractually agreed working hours.
The Working Hours Act (ArbZG) regulates the maximum permitted working hours and rest periods. However, it does not directly state whether overtime must be paid – it only defines the framework.
When must overtime be paid?
In principle, the following applies: work must be remunerated if it can only be expected in return for payment under the circumstances (Section 612 BGB). If employees perform additional work that is clearly not voluntary and unpaid, they are generally entitled to payment or time off in lieu.
Caution with clauses in the employment contract
Formulations such as “All overtime is compensated with the salary” are often legally problematic. The Federal Labor Court (BAG) has ruled several times that such provisions can be invalid if they do not contain a specific limit on the hours to be compensated. Employees must be able to clearly recognize how many hours are meant.
Important: A lump-sum payment must not fall below the statutory minimum wage. If the monthly salary is converted to all hours actually worked, the hourly wage must at least correspond to the minimum wage – otherwise the clause is invalid.
Overtime must be ordered or tolerated
Not all voluntary overtime is automatically paid. The BAG requires that overtime has either been ordered by the employer or at least deliberately tolerated. Tolerance exists if the employer knows that employees regularly work longer hours and does not prevent this.
No money without proof
The BAG requires a detailed description of the overtime worked: Date, start and end of working hours as well as the specific activities performed. Without such documentation, it is extremely difficult to enforce claims. It is therefore advisable to record overtime carefully and on a daily basis from the outset.
Obligation to record working hours
The European Court of Justice (ECJ) has ruled that employers must introduce a system to record daily working hours. This protects employees and also makes it easier to prove overtime.
Recommendation for action
Anyone who regularly works overtime should: (1) consistently document working hours (start, end, activity), (2) check the employment contract for unclear flat-rate clauses, (3) clarify with the employer at an early stage whether overtime is necessary and how it will be compensated. Overtime is not a legal no-man’s land – those who know their rights and carefully prove them can successfully enforce justified claims.
