Overtime can be a sensitive issue. Although the legal regulations on overtime are clear, they also leave a certain amount of leeway. This is why the topic always raises questions. In this article, we answer the most important questions about overtime.
What is overtime?
Overtime is when more time is worked than contractually agreed. This is the case, for example, if the employment contract stipulates a standard 8-hour working relationship, but a shift exceeds these 8 hours. Breaks are not included in this calculation. Overtime must therefore be actual working time.
The difference between overtime and extra work
Overtime is also often referred to as additional work. However, these terms are not synonymous. While overtime is the time spent working in excess of the previously contractually agreed working hours, overtime is the maximum time that may be worked in excess of the legally stipulated working hours.
This maximum working time is defined in the Working Hours Act (ArbZG) and is 48 hours per week. Breaks and rest periods between shifts must also be taken into account.
The statutory limit for overtime is a continuous working time of 10 hours. This means that no shift may be longer. However, taking into account the maximum working hours under labor law, these 10 hours may of course only be worked on a maximum of 4 days a week, as the limit of 48 hours per week would be exceeded on the fifth day.
How overtime is paid
One of the most important questions many employers have about overtime is whether overtime must be paid out or whether overtime can also be converted into time off, so to speak.
According to labor law, overtime must always be paid out. It is therefore not possible to simply convert overtime into time off for employees.
However, there are exceptions to this, or rather contractual agreements that can be made between employer and employee. If the employment contract stipulates that the employer can reduce overtime by compensatory time off if necessary, this is considered legal under employment law. Conversely, this also applies if the employee agrees to reduce overtime by taking time off in lieu.
There are also various options in the employment contract in the event of termination. It can be stipulated that the remaining overtime must be paid out. However, it is also possible to convert the overtime into vacation. In this case, the employee may leave the company earlier in the event of termination, without affecting their salary.
When overtime may be prescribed
There are a few cases in which employers are permitted to order overtime and employees must comply with this requirement. As a rule, these are previously contractually agreed regulations.
In the employment contract, for example, there is usually an overtime clause that specifies exactly how much overtime the employer is allowed to order. Of course, labor law must always be observed.
In companies that have a works council, the works council also decides on overtime in the company. The overtime regulation is then decided by the employer and the works council. However, it only comes into force if the employees agree to it.
The collective agreement regulates the overtime regulations based on the respective industry. The collective agreement therefore directly specifies how much overtime employers are allowed to prescribe.
Incidentally, employees are not allowed to work overtime unless it has been ordered by the employer or at least approved in advance. There is therefore no entitlement to payment for voluntary overtime.
This payment does not have to be accompanied by an overtime bonus. If no overtime bonus is specified in the employment contract, overtime is paid at the contractually agreed hourly rate.
Conclusion
The regulations for overtime are complex at first glance, but are actually quite clear. It is important that all agreements on overtime are set out in the employment contract so that there are no misunderstandings afterwards. Above all, the statutory provisions of employment law and the Working Hours Act must be observed.
