In labor law practice, the question often arises as to when overtime actually occurs and what rights employees can derive from it. Not every instance of extended presence at the workplace automatically results in overtime that must be compensated. Rather, the decisive factor is the reason for working beyond the contractually agreed working hours and whether this is attributable to the employer.
Overtime is generally considered to exist when the employer expressly orders it. This is the case, for example, when the employer specifically instructs the employee to work beyond the regular end of the workday to complete certain tasks. Such an instruction can be given verbally or in writing and typically establishes a claim to corresponding compensation or time off in lieu.
In addition, overtime may also arise without an explicit order if it is necessary for compelling operational reasons. Typical examples include emergency or hazardous situations in which immediate action is necessary to prevent damage to the business. In such cases, the additional hours worked are also legally considered overtime, even if the employer did not explicitly order them.
Another scenario arises when the employer regularly tolerates overtime. If an employee consistently remains at the workplace beyond their contractually agreed working hours, the employer is aware of this, and simultaneously assigns a workload that cannot be completed within regular working hours, the additional hours worked are recognized as overtime. The decisive factor here is that the employer knowingly accepts the extra work.
This must be distinguished from so-called “voluntary overtime.” This occurs when an employee works longer hours of their own accord, without any instruction, operational necessity, or tacit acceptance by the employer. Such voluntary additional work does not constitute overtime in the legal sense and generally does not give rise to a claim for compensation.
If overtime meets these criteria, there is generally an obligation to pay. The employer must either pay for the overtime or compensate for it with time off. The form of compensation chosen depends on the employment contract or—if no provision has been made therein—on the employer’s reasonable discretion.
An exception applies to employees with particularly high incomes or to positions where overtime is typically part of the required work performance, such as for executives or managers. However, such a blanket compensation can only be assumed if the annual salary is significantly above the contribution assessment ceiling for statutory pension insurance. This currently amounts to 96,600 euros gross annually, which corresponds to a monthly income of around 8,050 euros.
Another key point is the recording of overtime. A working time account is particularly advantageous for employees. In such a system, target and actual working hours are offset against each other, so that positive and negative hours are automatically balanced. The positive hours shown there are considered recognized by the employer under labor law, which significantly facilitates the subsequent enforcement of compensation claims.
This must be distinguished from simple time tracking, in which only the start, end, and breaks of working hours are documented. Such recording alone is not sufficient to successfully claim overtime in court. In these cases, the employee must provide a detailed account of when overtime was worked, what tasks were performed, and on what legal grounds these hours qualify as overtime. Experience shows that this involves significant difficulties in providing evidence.
From a labor law perspective, employees are therefore advised to work toward the introduction and use of a work time account. It creates transparency, facilitates the documentation of overtime worked, and strengthens one’s legal position in the event of a dispute with the employer.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.