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How many hours of overtime are allowed?
Employers usually have to pay for overtime worked by employees. There is no express legal provision for the remuneration of overtime.
Section 612 (1) of the German Civil Code (BGB) merely states that remuneration is deemed to have been agreed if the work can normally only be expected against payment. How the overtime pay is structured in individual cases is therefore decided by the respective collective agreement or the works agreement that an employee has signed.
Depending on the regulations contained in your working paper, you may receive an allowance for overtime worked or you may simply be remunerated for the additional work you have done in accordance with your basic remuneration. In the latter case, the remuneration you are entitled to for your overtime can easily be calculated by finding your hourly wage and multiplying it by the number of overtime hours.
So if you work for around 2,500 euros gross per month and are employed for 40 hours a week according to your contract, your hourly wage - based on the assumption that a month has an average of 4.33 weeks - is exactly 14.43 euros. If you have worked 10 hours overtime in the last month, you are accordingly entitled to 144.30 euros in addition to your basic salary.
Even if your working paper does not contain any regulations on the remuneration of overtime, your employer must, if in doubt, pay you for the additional work you have done. This is the case, for example, if overtime pay is actually customary in the industry for your job.
Although employers in Germany are usually obliged to pay overtime, there are exceptional cases in which employees can expect unpaid overtime.
This can happen to you, for example, if you work as a “manager”. Since so-called “services of a higher kind” are not necessarily paid for the hours to be worked, but rather for the performance of certain tasks, employees here generally do not receive any overtime pay. So if you work as a doctor, lawyer or tax advisor, you must therefore assume that you will not be paid for the additional hours you work.
Something similar can happen for you if you get a “clearly outstanding remuneration” for your work, i.e. earn more than 80,400 euros annually in western Germany or more than 73,800 euros in eastern Germany (as of 2019). This is due to the fact that the Federal Labor Court (BAG) has repeatedly ruled in the past that the payment of overtime from a certain salary class is "unusual".
Salary paid for overtime - is that legal?
Contractual clauses that aim to compensate employees for all overtime with their monthly fixed salary are not permitted in Germany. If your working paper says that "overtime is paid with the salary", "with the agreed monthly remuneration" or with the "above remuneration", then this contradicts the valid case law. The Federal Labor Court (BAG) ruled in 2010 that the relevant passages in employment contracts or company agreements were too imprecise and therefore “invalid”.
Agreements that specifically state the extent to which overtime is compensated for with the monthly salary are, in turn, permissible in most cases. So if your employment contract says, for example, that your monthly fixed salary compensates for “overtime of up to 10 percent of the agreed weekly working time” or “up to 3 hours of overtime per week”, then that is entirely legal. Nevertheless, overtime that exceeds the fixed lump sum must be paid out or compensated with free time.
Overtime reduction: time off compensation
Instead of paying overtime, employers often prefer to reduce the overtime of their employees through what is known as "time off compensation". An employee who has worked 16 overtime hours and works an average of 8 hours a day can, according to this principle, be allowed two (paid) days off to compensate for his overtime with free time.
However, compensation for leisure time must also be contractually stipulated so that it is legally valid. If there is a clause in your working paper that prohibits the reduction of overtime through time off, then your boss has no choice but to pay you for your overtime.
Can I work overtime whenever I want?
Employees have no statutory right to reduce their overtime at their own discretion. On the contrary: It is up to the employer to determine when to reduce overtime by compensating for time off. This can make sense, for example, if a company is currently doing less work than usual.
Normally, however, the employer and employee should agree on a suitable time to reduce overtime. An exceptional case occurs if your employment contract contains a clause that allows you to work off your overtime at your own discretion.
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