Vergütung von Überstunden: ein Selbstläufer?

In practice, the question often arises as to whether the employee can demand payment for overtime worked. While in the past employees often had to be told that being right and being right are two different things, the chances of litigation in this regard have improved significantly as a result of the Federal Labor Court's recent case law. The requirements regarding the employee's burden of presentation and proof, which were previously difficult to meet, have been significantly eased. With The Federal Labor Court has its most recent judgment dated March 25, 2015 (ref.: 5 AZR 602/13). The options for enforcing claims are once again made more favorable for employees. This judgment gives reason to once again present the current legal situation in context.

What is overtime anyway?

Overtime is generally the amount of time the employee works in excess of the working hours applicable to his or her employment relationship. The applicable working hours usually result from the employment contract, and possibly also from a collective agreement that applies to the employment relationship. But what working hours apply if the employment contract only contains unclear regulations?
In this regard, the Federal Labor Court has provided some interpretative aid in two recent decisions. If the employment contract at least stipulates that the employee is employed “full-time”, this wording must be interpreted in such a way that the regular duration of weekly working hours is 40 hours (BAG, judgment of March 25, 2015, Ref.: 5 AZR 602/13 ). However, if there is no provision in the employment contract regarding the duration of working hours, the Federal Labor Court assumes that the parties wanted to agree on standard working hours. This corresponds to the contractual will of reasonable and honest contractual partners. The usual working hours for full-time employees are the working hours regularly worked in the respective company (BAG, judgment of May 15, 2013, Ref.: 10 AZR 325/12). This should also apply if so-called trust-based working hours have been introduced. Even with trust-based working hours, there is no need to agree on a specific duration of the working hours owed, but rather compliance with this obligation is not monitored. Even with trust-based working hours, overtime can arise if people work beyond normal working hours.

Should overtime be paid in principle?

If no agreement has been reached on this, overtime is only to be paid separately if the employee has a so-called objective expectation of remuneration. This is the conclusion of case law from Section 612 Paragraph 1 of the German Civil Code (BGB), according to which remuneration is deemed to have been tacitly agreed if the service “under the circumstances can only be expected in return for remuneration.” This should generally be the case. However, there is no general legal principle according to which all work outside of regular working hours must be remunerated (BAG, judgment of November 17, 2011, Ref.: 5 AZR 406/10). For services of a higher nature (e.g. lawyers) or for employees with management tasks who do not fall under the Working Hours Act (e.g. chief physicians and senior managers), there may be no entitlement to overtime pay. The Federal Labor Court drew another important limit in a recent decision of February 22, 2012 (ref.: 5 AZR 765/10): If a clearly highlighted remuneration is paid, which must be affirmed if the contribution assessment limit in the pension insurance is exceeded, there is no objective expectation of remuneration for overtime. These are then already paid for with the increased salary. In summary, taking into account the exceptions mentioned, in most cases there should still be an objective expectation of remuneration from the employee and therefore a fundamental obligation on the part of the employer to pay overtime.

Overtime pay in the employment contract – effective or not?

Employment contracts often contain clauses according to which overtime is paid with salary. Such clauses are only effective if the employee can clearly see from the clause to what extent overtime should already be compensated for with the salary. This is particularly not the case with the often-occurring clause that “required overtime” or simply any overtime should be paid with the normal salary. Such a clause violates the transparency requirement of Section 307 Paragraph 1 Sentence 2 BGB and is therefore ineffective (BAG, judgment of September 1, 2010, Ref.: 5 AZR 517/09). Overtime must be paid if – as described above – there is an objective expectation of remuneration. However, contractual compensation for overtime that is specifically limited in time (e.g. “10 hours per month”) or compensation for overtime within the limits of the Working Hours Act is permitted. In the latter case, overtime up to the maximum working limit of 48 hours per week under the Working Hours Act is already compensated with normal wages.

When are there chances of enforcing a claim to overtime pay in labor courts?

Let's get to the real core of the problem: If, according to the above conditions, there is a fundamental right to overtime pay, under what conditions can it be legally enforceable with a chance of success?
In the past, in practice it was generally not possible for an employee to enforce a claim to overtime pay in a labor court. The reason for this was the high demands of case law on the so-called burden of presentation and proof. An employee had to state in detail on which days and at what times of the day he worked beyond his usual working hours. In addition, he had to state what normal working hours he expected and that he actually worked. Finally, he had to explain in detail which tasks he had carried out. In some legal disputes, the employee was required to provide a substantiated, sometimes minute-by-minute, account of what specific activity he or she performed during the time claimed (see, for example, LAG Rhineland-Palatinate, judgment of July 20, 2011, ref.: 7 Sa 692/ 10 and LAG Saxony, judgment of October 14, 2010, Ref.: 6 Sa 343/10). In labor court proceedings, therefore, often only a very small percentage of the claimed claim was enforceable; in settlements, a quota of 10 % of the overtime claimed was not unusual. From an employee perspective, it was tempting to describe overtime pay as almost a “phantom” under labor law.
However, the current case law of the Federal Labor Court has addressed the difficulties faced by employees in enforcing their claims and has brought significant relief for them. First of all, the Federal Labor Court ruled that the employee still has the burden of presenting and proving the facts from which the claim for overtime pay should arise. However, the same principles apply as for the employee's claim that he has worked normal working hours (BAG, judgment of May 16, 2012, Ref.: 5 AZR 347/11). After that, it is sufficient to state when the employee worked, on which days, from when to when, or was available to work on the instructions of the employer. However, the employee no longer has to provide specific information about the activity for each overtime at this level of explanation (BAG, judgment of April 10, 2013, Ref.: 5 AZR 122/12). The employer must now respond to this in a substantiated manner within the framework of a graduated burden of presentation and state in detail which work he assigned to the employee and on which days the employee (did not) comply with these instructions from when to when. Such a substantiated response is now unlikely to be possible for the employer, so that it can almost be said to be a “no-brainer” as long as the employee can only explain the information described above in detail and, if necessary, prove it.
The recent judgment of the Federal Labor Court dated March 25, 2015 mentioned at the beginning now brings further relief: In principle, the employee also bears the burden of presentation and proof for the number of overtime hours worked. However, if it is clear that overtime was worked at the instigation of the employer, but the employee cannot meet his burden of proof or proof for each individual overtime in every respect, the court may estimate the amount of overtime worked. This makes it easier for the employee to enforce his or her claim to remuneration, for example in cases where timely working time records are missing, the employer has not checked the amount of work time or witnesses are not available.
However, it should always be noted that the employee cannot of course claim overtime pay if he or she is simply “serving” time at work. This means that the employee must also present and, if necessary, prove that the overtime was ordered, approved or tolerated by the employer or was at least necessary to complete the work owed (BAG, judgment of April 10, 2013, Ref.: 5 AZR 142/12 ). Mere presence at work does not constitute a presumption that the overtime was necessary. However, approval of overtime occurs, for example, if the employer signs time sheets or accepts them in some other recognizable way. A (sufficient) tolerance of overtime occurs if the employer recognizes, accepts and does not prevent overtime work. However, the employee must then at least explain which overtime hours were worked and how the employer became aware of them and how further overtime work was subsequently carried out (BAG, judgment of April 10, 2013, Ref.: 5 AZR 142/ 12).

The last hurdle: employment contract exclusion periods

According to statistical surveys, several billion hours of overtime are worked in Germany every year. Working overtime is likely to be the norm in practice. Provided employees have kept sufficiently accurate records of the overtime they have worked, significant payment claims can arise over longer periods of time. The statutory limitation period is three years, meaning that claims for remuneration can generally be asserted retroactively for this period. However, before employees overly optimistically calculate high additional income from overtime credit, it is worth taking a look at the employment contract. The employment contract often contains exclusion periods (e.g. a provision stating that all claims arising from the employment relationship must be asserted in writing within a period of three months and otherwise expire). In such a case, the employer's risks are limited to claims that the employee has asserted in a timely manner. In the example given, with an exclusion period of three months, an employee could, with the prospect of success, only claim overtime pay for the previous three months from his employer and, in the event of a dispute, subsequently sue in the labor court. However, an important special feature regarding exclusion periods in connection with overtime deserves mention: If the employer keeps a working time account and includes the employee's overtime hours in this working time account, this represents a recognition of the overtime with the result that he is responsible for the work hours recorded in the working time account Overtime can no longer be invoked as an exclusion period in the employment contract (BAG, judgment of July 28, 2010, Ref.: 5 AZR 521/09).