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Overtime: How much overtime & how to compensate?
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Those times that exceed the contractually agreed working hours are counted as overtime. They are not always remunerated. This is where it gets interesting for employees: Are you obliged to work overtime - and if so, how much? There is no legal regulation (except for apprentices). The overtime must not last indefinitely - performance and health suffer as a result. So can you refuse permanent overtime? Or can you get overtime paid out? The most important answers to questions about labor law and overtime ...
➠ Content: This is what awaits you
➠ Content: This is what awaits you
What counts as overtime?
How many hours you are obliged to work is stipulated in the employment contract, the collective bargaining agreement or a works agreement. Once you are above that, you work overtime.
What is the difference between overtime and overtime?
The Working Hours Act (ArbZG) defines the maximum working hours. It is eight hours for employees on a working day. If you then work more and exceed this time, you do extra work. Under certain circumstances, this can amount to the same thing as overtime - for example, if you have agreed to work a 40-hour week but work 45 hours. However, it may be - for example with part-time employees - that the agreed working hours are significantly below the regular working hours. In that case, as an employee, you are already working overtime if you work 33 instead of the agreed 30 hours a week. However, you stay below the maximum working hours.
How many hours of overtime are allowed?
The regular schedule is 40 hours a week, eight hours a day. This is to prevent excessive strain on the employee. The Working Hours Act allows a maximum of ten hours a day, 48 hours a week. This means that eight overtime hours are possible over a typical 40-hour week. But such overtime must be compensated for by free time within six months. This can mean, for example, that you are more likely to go home at a time when there is less to do. Deviating regulations are only possible through a collective agreement.
How is the overtime paid?
There is no legal right to overtime pay. Rather, it depends on the regulation in the employment or collective agreement. For example, if the collective agreement stipulates remuneration or if your employer has not expressly excluded payment, payment is an option. The prerequisite for this, however, is that the overtime was ordered or at least worked with the employer's knowledge. This is the case, for example, if you have to do so many other tasks that it would not be possible without additional working hours. It can be different if an employee works longer voluntarily. He does not have to be remunerated for this. If overtime is compensated, there are generally two ways to do this:
In this case, the employee receives financial compensation in addition to his or her usual wage or salary - usually in the form of the regular hourly wage. The employer cannot simply pay less than usual for the more hour worked. Conversely, however, surcharges can be added - more on this below in the article.
The value of overtime can be calculated using a simple formula: the average gross monthly salary divided by the average number of monthly hours. The result is the exact hourly wage, which you only have to multiply by the number of overtime worked. To calculate the number of hours per month, simply multiply the number of hours per week by 4.33. An example: Ms. Müller earns 2500 euros gross per month. She works an average of 38 hours a week, but has worked 15 hours overtime in the past month.
➠ Number of monthly hours = 38 x 4.33 = 165 (rounded up)
➠ Hourly wage = 2500/165 = 15.15 euros
➠ Overtime wages = 15.15 x 15 = 227.25 euros (gross)
Leisure time compensation
The employee receives additional vacation days or free time to compensate for the overtime. This regulation is particularly popular with corporations. The wage costs remain the same and overtime compensation remains unbureaucratic thanks to flexitime and working time accounts. The employees can then - in consultation with the boss - usually decide for themselves when to take the time off. Some companies also allow minus hours in this way and of course only within a specified framework, which have to be worked up again at a later point in time.
Is there a surcharge for overtime?
If you work more than contractually agreed, do you get surcharges and a higher payment? That's not always like that. There is no general right to an overtime allowance and such clauses are also rare in employment contracts. Here, too, employees have greater opportunities with a valid collective agreement that can regulate surcharges for overtime. In the TVöD, for example, employees receive time bonuses for overtime of 30 percent (in pay groups 1 to 9b) or 15 percent (in pay groups 9c to 15).
Can the boss ask for overtime?
There is no legal obligation to work overtime. Exceptions apply in crisis or emergency situations, which means life-threatening but unforeseeable crises (such as a flood or a fire) of the company. Another exception is if there is a special operational need. Here, for example, an order of major economic importance that has to be completed on time can justify longer working hours. Whether your boss can order overtime also depends on the applicable regulations in your employment or collective bargaining agreement or a works agreement.
Regulation in the employment contract
Agreements on overtime can be made in the employment contract. Here it can be precisely recorded to what extent overtime may be ordered by the employer.
Regulation in the collective agreement
The same applies to a valid collective agreement. This can include an overtime regulation for all collective bargaining companies. According to TVoD, overtime is, for example, working hours that go beyond regular working hours and are not compensated for by free time by the end of the next calendar week.
Regulation in the works agreement
Together with the works council, the employer can set out the rules on overtime in a works agreement. For example, it is agreed under what circumstances and to what extent overtime can be ordered by the company. If there is a works council, it has a say in determining overtime. If the normal working hours are to be extended, the employer must be able to refer to a works agreement or inform the works council and obtain approval. Otherwise, it can prevent overtime that the works council considers unnecessary or excessive. In addition, the works council should weigh up the advantages and disadvantages of overtime (higher earnings - more work and stress) and bring them into balance.
Can you refuse to work overtime?
You can only refuse overtime if there is no contractual obligation for it. However, if there is such a provision in the contract, then you may not refuse to work overtime. Otherwise you will refuse to work - and that can result in a dismissal. As long as your boss adheres to the laws and regulations relating to overtime, you cannot refuse to work overtime. The case may be different if you refuse the additional work with reference to health. Ideally, you can substantiate any health restrictions with a medical certificate.
Who doesn't have to work overtime?
There are numerous exceptions and special regulations for overtime, for example in certain industries with specific regulations. For example, hospitals are allowed to draw up emergency duty roster that include holiday work. After all, the supply must be maintained. Various laws, which often serve to protect workers, regulate a few other exceptions to overtime.
If an employee is pregnant and the employer is aware of this, the employee may not be ordered to work overtime. Expectant and nursing mothers are subject to maternity protection.
If an employee works part-time, overtime is normally not permitted. A valid collective agreement can, however, also contain a regulation on overtime for part-time employees. In addition, the additional hours can also be allowed part-time in an exceptional situation if the boss was unable to assess the additional workload beforehand.
If an employee is not yet of legal age, the Youth Protection Act applies and overtime may not be ordered. Should there be an emergency in which a young employee nevertheless and voluntarily works overtime, this must be compensated within three weeks.
Severely disabled employees have the option of requesting leave from overtime. This right is granted to them in Section 207 of the Ninth Social Code (SGB IX). If this exemption has been announced to the employer in writing, no overtime may be requested from an employee with severe disabilities. If an exemption from overtime has not yet been applied for, overtime can also be ordered for severely disabled employees.
A special feature concerns so-called "executive employees": The Working Hours Act does not apply to them. The employer can therefore demand overtime from a manager, even if this exceeds the maximum working time specified in the Working Hours Act. A manager is an employee who has entrepreneurial power of attorney or power of attorney, who is allowed to hire or fire employees.
Are overtime paid for with the salary?
In some employment contracts, so-called flat-rate payments can be found, according to which the overtime should be compensated with the salary. In the past, this has often led to disputes and labor lawsuits. In fact, there is no general rule of law that all overtime is payable. Rather, the decisive factors are ...
Flat rate compensation
Apparently resourceful employers formulate in the employment contract: "The salary covers all of the employee's overtime". It's not that easy. According to current case law, these standard clauses are not permissible because it is not clear how many additional hours should be covered by them. A flat-rate compensation ("all overtime") with no time limit is therefore always ineffective. However, it would be sufficiently clear to have a formulation with which “20 overtime hours per month are compensated with the salary”. It is thus sufficiently determined for both sides what to expect.
Amount of remuneration
Unfortunately, the law only states that the "usual remuneration" is paid "if, under the circumstances, the service can only be expected against remuneration". That leaves room for speculation: Who can now expect that the additional working time will be paid? The Federal Labor Court has made it clear: low-wage earners have an expectation of remuneration, but higher-wage earners do not. According to the highest German labor judges, one is a higher earner if the remuneration exceeds the contribution assessment limit in the statutory pension insurance (BAG, 5 AZR 765/10).
How can overtime be proven?
In the event of a dispute, the so-called burden of presentation and proof usually lies with the employee. He then has to prove that the boss ordered the overtime and how many of it he actually worked beyond his normal working hours. If there is an official time recording (e.g. a time clock), things are relatively simple. The same applies if you document the overtime in a list with an overtime slip that you have your supervisor sign.
If this documentation does not exist - for example because there are trust-based working hours in the company - it becomes difficult: For each individual overtime, evidence must then be provided of which work was performed and on whose instructions. After all, if the employer and employee can agree that overtime has been done, the court may estimate the number of hours to be paid.
Expiry periods for overtime
The statute of limitations and expiry periods must be observed. The right to overtime payment expires after a maximum of three years. Specifically: Your entitlement to overtime payment expires if you do not assert this within this period. However, shorter periods can also be stipulated in the employment or collective bargaining agreement. Your entitlement to payment for the additional hours may expire after a few months.
What happens in the event of termination?
In the event of a dismissal, the employer can determine whether the overtime is paid or compensated in the form of time off - regardless of whether the employee or employer terminated the contract. In the case of compensation through time off, the employee would receive additional vacation days, for example to be able to leave the company earlier. However, this option only applies in the event of normal termination.
What are the consequences of overtime?
Overtime is done almost everywhere, although it has long been known how harmful it is. Anyone who works longer than eight hours a day doubles the likelihood of developing depression, risks cardiovascular diseases and overexploits their own body. With these possible consequences, whether the overtime is then paid is only a small consolation. The British Whitehall II study comes to the conclusion that cognitive performance declines when employees accumulate hours. Another study by the University of Melbourne led by the scientists Shinya Kajitani, Colin McKenzie and Kei Sakata also confirms that skills such as learning, memorizing or inventing decrease due to the stress of overtime.
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