Dr. Till Bender, attorney at DGB Rechtsschutz GmbH
What if the employment contract states that all overtime is compensated with regular wages?
A clause in an employment contract stating that all overtime is compensated with the regular wage is invalid. This is because it is unclear how many hours of overtime are intended to be covered by this provision. A clause with no time limit is invalid. However, a formulation such as “10 hours of overtime per month are compensated through the salary” would be permissible. This is because it then makes it clear what the employer can require and what the employee must expect. The Hamm Regional Labor Court has ruled that ten hours of overtime per month, based on a 40-hour workweek, may be compensated through the employee’s salary (judgment of May 22, 2012 – 19 Sa 1720/11). If a collective bargaining agreement applies, the compensation for overtime is governed by the provisions of that agreement, regardless of the terms of the employment contract.
In extreme cases, am I required to work indefinitely without receiving additional pay?
The Working Hours Act sets a limit. It assumes a maximum daily working time of eight hours. Working hours may be extended to up to ten hours if, on average, eight hours per day are not exceeded within a six-month period or within 24 weeks. The law assumes a six-day workweek, so the limit is generally 48 hours.
As a rule, overtime must be paid in addition to the normal wage or salary. If this were not the case, the employee would be doing more work than they are being paid for. And that is incompatible with the exchange nature of the employment contract (work in exchange for wages).
How should I respond if my employer requires me to work overtime?
In principle, overtime must only be worked if it has been agreed upon in advance. The employer’s right to issue instructions does not confer the authority to mandate overtime. Exception: In emergencies, i.e., when overtime is urgently required in the interest of the business. An emergency exists only if it involves an unusual, unforeseeable event. Capacity bottlenecks or an increased workload are not sufficient grounds and are considered organizational failures for which the employer is responsible. And, of course, the limits set by the Working Hours Act must be observed.
If the company has a works council, it must be consulted before any overtime is ordered. Overtime ordered by the employer without the works council’s involvement does not have to be worked.
If there is a company agreement in place that provides for overtime, what is the situation now?
The works council can also exercise its right to participate by entering into aworks agreement with the employer. In day-to-day operations, this has the advantage that the employer and the works council no longer have to negotiate every single hour of overtime. For example, the works council can approve a certain number of overtime hours; this often goes hand in hand with the introduction of working time accounts. In this context, provisions can also be made regarding the timeframe within which overtime must be used up, the amount of overtime pay, and whether overtime should be paid out or taken as time off. If there is a works agreement, it is advisable to review it first to familiarize yourself with your rights.
Am I entitled to overtime premiums, and how much are they?
There is no one-size-fits-all answer to this question either. In principle, overtime must be paid or compensated with time off. The employment contract or collective bargaining agreement governs working hours and the hourly wage. Rules regarding overtime and the corresponding overtime pay are therefore also found in the employment contract or collective bargaining agreement. The amount of the overtime pay is also specified there. According to the Collective Bargaining Agreement for the Metal and Electrical Industry (MTV Metall und Elektroindustrie), the overtime rate for the first 10 hours per week is 25%; each additional hour must be compensated at a rate of 50% above the regular hourly wage.
On December 5, 2024, the Federal Labor Court ruled (8 AZR 370/20) that part-time employees are entitled to overtime premiums as soon as they exceed their contractually agreed-upon working hours—and not only when they work more than a full-time employee. A collective bargaining agreement that handles this differently is unlawful and may constitute indirect gender discrimination.
Should I opt to be paid for my overtime or take time off in lieu?
If the company has a policy that allows for both options, this ultimately comes down to your personal circumstances. Many employees choose to be paid for their overtime, especially if overtime premiums are agreed upon. However, a higher gross monthly salary automatically leads to a higher taxable income. In contrast, an additional day off is essentially “tax-free.” Ultimately, everyone must decide for themselves which option is more advantageous. Some collective bargaining agreements give priority to time off in lieu. In this case, only the premium pay—not the overtime itself—is paid out.
I’m sick or on vacation, and my employer is only paying me my base salary. Is that legal?
In the case of vacation and illness, employees are generally to be treated as if they had worked normally. In the event of illness, the principle of continued pay applies, according to which employees are to continue receiving the wages they would have earned had they worked normally. However, since overtime is not part of “normal” work, it is only included in continued pay if the employee regularly worked more than the agreed-upon working hours. Vacation pay is generally calculated based on the average earnings from the last 13 weeks. Therefore, if overtime was worked during this period, it is included in the vacation pay calculation.
Although the employer did not order overtime, a significant amount of work is still being done. Does the employer still have to pay for the extra work?
Overtime can also arise when the employer tacitly allows it. If the employer does not explicitly order it but sees that employees are working more than their normal hours, they must put a stop to it by sending the employees home. If they fail to do so, they are thereby indicating that they consent to the overtime and must pay for it just as if they had ordered it.
My employer isn’t paying me for my overtime—what can I do?
Like any other claim for payment, overtime pay can be enforced through legal action; the union and DGB legal protection can assist with this. However, employees should note that the full burden of proof rests with them, which negatively affects their chances of success. Employees must not only prove that the overtime was worked but also that the employer ordered it or knowingly tolerated it. Even following the Federal Labor Court’s ruling on time tracking (BAG ruling 1 ABR 22/21 of September 13, 2022), the burden of presentation and proof for overtime worked continues to rest with employees. This is still relatively straightforward when time tracking systems and overtime accounts are in place.
If such systems are not in place, even though the employer is required to provide them, employees must keep track of their working hours themselves. It is advisable to keep timesheets and save emails or instructions. Detailed documentation of the work performed is an absolute prerequisite for having any chance of success in an overtime claim; vague assertions are regularly dismissed in court. Any statutes of limitations must be observed. If these are missed, the claims expire.
Note: IG Metall members are represented free of charge by attorneys from DGB Rechtsschutz GmbH in labor and social courts, if necessary. The first point of contact for any issues is your local IG Metall office.
