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Anyone who often sits in the office for a long time should know their rights
Photo: Tom Werner / Getty Images
Too much work has recently
caused great anger
in the city of Cologne
: More than 1,000 cases of overtime had accumulated in the city administration and were paid out by mistake.
Actually, they should have been balanced in free time.
Now all overtime is checked retrospectively until 2017 and, in case of doubt, the money is reclaimed from the employees.
And Cologne is not an isolated case:
The question of how to properly deal with overtime, how to properly document and compensate for it, worries many employees.
Here is an overview.
What is overtime and how much overtime is allowed?
Overtime is the working hours that go beyond the contractually agreed working hours.
According to the Working Hours Act, the limit for weekly working hours is 48 hours.
As a rule, employees are not allowed to break this 48-hour limit.
"There are exceptions, however. For example, when special seasonal work has to be done - but approval from the regional council is required," says Achim Schunder, honorary professor at the University of Mannheim and editor of the "Neue Zeitschrift für Arbeitsrecht".
Can the employer oblige his employees to work overtime?
As is so often the case, it depends on the individual case.
If there is an increased number of illnesses in the company, the employer may also order overtime if it is absolutely necessary and only temporary.
The possibility of being able to order overtime is based on the employer's right to issue instructions and directives.
Sufficient rest periods must always be observed: Employees must be entitled to an uninterrupted rest period of at least eleven hours after the end of their daily working hours.
If there is a works council in your company, it has a right of co-determination if overtime is ordered.
This right of co-determination results from the Works Constitution Act.
How and to what extent must overtime be compensated?
This is not regulated by law.
"Whether you compensate for the overtime with free time or have it paid off, you can negotiate freely with your employer," says Schunder. It therefore always depends a little on the personnel situation in your company. If the lack of employees is a huge gap If the contract breaks, it makes more sense for many employers to pay the employees' overtime. The overtime is compensated with the hourly wage agreed in the employment contract. If the contract only states a monthly salary, this is reduced to the hourly wage.
The employment contract states that all overtime is covered with the salary.
Is this overtime regulation effective?
Such a blanket regulation is certainly too vague and ineffective.
Therefore, a contract clause must be included in a contract with a maximum amount of overtime to be compensated, approximately eight hours per month.
In addition, it always depends on the individual case, says Schunder.
In concrete terms, the decisive factor is which position the employee fills in the company and how much he or she earns.
"If we are talking about a manager, then it is perfectly fine that up to eight hours of overtime per month are paid with the regular salary," says the lawyer.
If the seller writes an additional eight hours of overtime in the contract, this is an impermissible disadvantage.
"But if we think of the division manager, who earns 8,000 euros and more per month, then it is in turn quite okay if the salary also compensates for a certain number of additional working hours," says Schunder.
What if I work overtime in my part-time job?
The principle applies: every hour that goes beyond the contractually agreed working hours is an overtime;
also part-time.
Regulations that apply to full-time employees can be transferred to part-time employment.
Is overtime also allowed in training?
As a rule, overtime is not allowed for trainees, but there are exceptions.
According to the Youth Employment Protection Act, these must be activities that cannot be postponed and are an "emergency". The trainee must be given free time within the next three weeks to compensate for the overtime. Overtime is usually not included in the training .
Minor trainees must adhere to the daily working time of eight hours. In exceptional cases, this limit may be extended to eight and a half hours. In this case, however, time off must still be compensated within the same week. who are of legal age.
What can I do if my employer refuses to pay overtime?
A lot has changed here since last year.
With the judgment (C-55/18) of May 14, 2019, the European Court of Justice ruled that member states must oblige employers to set up a system with which the daily working hours of employees are documented.
The Member States are required to take all necessary measures to ensure that employees actually observe the minimum daily and weekly rest periods and the upper limit for average weekly working hours.
"That makes proof very easy: If the employee has two hours of overtime on the account according to the system, then the two hours of overtime can no longer be ignored," says Schunder.
Can overtime expire?
Overtime is subject to the normal statute of limitations of three years.
Often, however, there are so-called exclusion periods or expiry clauses in employment contracts, which mark a timely compensation of the claims of employers and employees.
This also includes remuneration for overtime.
The deadlines for this must not be set too short and must be at least three months.
Accordingly, overtime is forfeited if it is not compensated within the period set in the contract.
"If, according to the system, the employee has two hours of overtime on their account, the two hours of overtime can no longer be ignored"
Achim Schunder
If this preclusive period does not exist in the employment contract or if it is set too short and therefore ineffective, the above-mentioned regular limitation period of three years applies.
In this case, overtime may not expire until the three years have passed.
However, the period only begins at the end of the year of overtime.
What happens to my overtime if I am given notice?
In order to be able to have your overtime paid out after you have given notice, it is especially important that you have properly documented the overtime.
This has been easy to do since May of last year using the working time recording described above.
As long as there is no provision for an overtime allowance in the employment contract, overtime is paid at your normal hourly wage.
"In a normal employment relationship, the employer will not block himself there," says Achim Schunder.
If a notice of termination has been given, regardless of whether by the employee or the employer, the overtime regulation specified in the employment contract applies.
The employer can determine whether the overtime is paid immediately in the event of a notice or whether it is compensated in free time.
If it is not agreed in the employment contract how to deal with pent-up overtime after a dismissal, you will have to make an individual arrangement with your employer.
In the event of termination or, in particular, when concluding a termination agreement for the employment relationship, a so-called compensation receipt is often presented.
In this way, after leaving the employment relationship, all claims arising from the employment relationship are compensated - including overtime.
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