Some people call it “overtime,” others call it “extra work” when they work longer hours. Isn’t that the same thing?
Formally, they’re two different things. Legal experts use the term “overtime” when an individual employee exceeds their contractual working hours. If the individually agreed-upon workweek is 20 hours, the 21st hour is overtime; with a contractual workweek of 30 hours, it’s not until the 31st hour. They use the term “extra work” when the collectively bargained working hours are exceeded. For most people, however, they’re usually just two words that mean the same thing.
My boss wants me to work longer, but I have tickets to a soccer game. Am I required to work overtime?
Generally speaking, no. Employees are only obligated to work the contractually agreed-upon hours. Therefore, the employer cannot simply demand more. Exceptions are emergencies. A poorly planned project or a deadline set too close to the deadline are generally not considered emergencies. According to case law, emergencies refer to unforeseeable events, such as flooding.
However, there are numerous contractual agreements that allow employers to require overtime or additional work. They can stipulate this in employment contracts with individual employees. Clauses such as “regular overtime is compensated as part of regular pay” are generally invalid. While the clause allows for the assignment of overtime, the exclusion of payment is invalid.
Overtime is also regulated in company agreements and collective bargaining agreements. Furthermore, overtime must always be approved by the works council. Employees should always contact the works council in such cases.
Does my employer decide how much overtime I have to work?
The Working Hours Act sets limits on this. It stipulates a regular daily working time of eight hours for all employees. This may be extended to up to ten hours, provided that the average over a six-month period does not exceed eight hours. The Working Hours Act limits the weekly working time to 48 hours, since Saturday counts as a workday. In exceptional cases, it may be extended to 60 hours.
Do I have to work on Saturdays if my boss requires it?
If, in exceptional cases, the weekly work schedule is not specified in the employment contract or another agreement, it is subject to the employer’s right to issue instructions or directives. While the employer cannot require more than the contractually agreed-upon working hours, they can determine when the work is to be performed.
I regularly work longer hours than agreed upon in the collective bargaining agreement. Does my employer have to pay me for the additional hours?
The employer is only required to pay for overtime if they are aware of it. If an employee consistently works longer hours than contractually agreed upon without their supervisor’s knowledge or at least tacit approval, the employer is not required to pay for that time. In the latter case, employees should document when and why they worked longer hours and, ideally, have their employer confirm this.
Overtime ordered by the employer must generally be paid. The employer may compensate for it with time off if the employee agrees or if the employer has reserved this option in the contract. In companies with company agreements on working time accounts or flex-time arrangements, longer working hours are generally compensated with time off.
Is the pay for extra work or overtime higher than for regular working hours?
The law does not provide for any premium pay for hours worked beyond regular working hours. Entitlement to overtime premiums exists only if there is a corresponding provision in the employment contract or a collective bargaining agreement. Or if the employer expressly agreed after the employment contract was concluded that they would pay overtime premiums. The amount of the premiums varies depending on the collective bargaining agreement.
Overtime premiums must also be paid even if the overtime is later compensated with time off. However, the same rule applies to overtime premiums as to overtime pay: Employees are only entitled to them if the employer required the overtime or knowingly allowed it.
The situation is different for night work. In this case, the law also stipulates that work performed between 11 p.m. and 6 a.m. must be compensated with premium pay.
Do I have to be at work on time at 8:00 a.m. if I worked until 10:00 p.m. the night before?
No. The Working Hours Act stipulates that there must be at least 11 hours of rest between the end of one work shift and the start of the next, so that employees have enough time to recover.
I frequently go on business trips for my employer. Does my work time start when I leave or only when I arrive?
Whether travel time counts as working time depends on what has been agreed upon in company agreements, collective bargaining agreements, or employment contracts. Travel time for business purposes generally counts as working time. However, case law holds that it may be compensated at a different hourly rate than regular working time. As with overtime, clauses that provide for a lump-sum payment for travel time as part of the monthly salary are invalid. Some collective bargaining agreements address this issue more specifically by providing for additional compensation for up to four hours of travel time on workdays. Where collective bargaining or company regulations do not apply and business trips occur regularly, it is advisable to stipulate the payment for travel time in the employment contract.
Can my employer require me to take a break when there is nothing to do at the moment?
Break times must be set in advance so that the employee can plan accordingly. The works council must be consulted regarding the duration and timing of breaks, and the provisions of the Working Hours Act must be observed. Employees may work continuously without a break only if their workday is no longer than six hours. For a workday lasting longer than six hours, the law requires a 30-minute break; for a nine-hour workday, the break must be at least 45 minutes. Breaks may be taken in shorter intervals, but no single break may be shorter than 15 minutes.
Can my boss call me back from my break if it’s urgent?
The same rule applies here: The break belongs to the employee. In extreme, exceptional situations, it may be necessary for the employee to interrupt their break upon instruction from their supervisor. However, there must truly be tasks that cannot wait another 15 or 30 minutes, because otherwise serious harm would result.
