Definition
Overtime refers to hours worked in excess of the agreed weekly working hours. It must be paid or compensated with time off – provided it was ordered, approved or worked due to operational necessity. Clauses such as ‘Overtime is covered by the salary’ are only valid if a specific number of hours is stated. In the event of a dispute, the employee must provide precise evidence of when and at whose instigation they worked longer hours. Following a ruling by the Federal Labour Court in 2022, employers are obliged to systematically record their employees’ working hours.
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Classification under employment law
Overtime must be remunerated or compensated by time off in lieu if it has been ordered, approved or worked due to operational necessities. The burden of proof lies with the employee – according to ECJ case law (the ‘time clock’ ruling of 2019), employers must provide systems for recording working hours.
Distinction from related terms
Burden of proof: Employees must specifically demonstrate and provide evidence of overtime. Without sufficient evidence, there is generally no entitlement to remuneration.
Time off in lieu: Overtime can either be paid or compensated with time off. Time off in lieu is therefore an alternative to remuneration, not an integral part of the overtime itself.
Practical tip
Since the Federal Labour Court (BAG) ruling of 13 September 2022 (1 ABR 22/21), employers in Germany have been obliged to systematically record their employees’ working hours. Make active use of this: request information about your recorded hours and compare them with your own records.
