SZ reader Andreas R. asks:
I have been in a management position for 19 years. Now my company is switching from trust-based working time to electronic time recording, I was informed six days before the start. My employer does not want to recognize my overtime work (more than 100 hours) and does not want to transfer it. In doing so, I can no longer balance my trust working time account in a hurry. Do you think that is correct?
Ina Reinsch answers:
Dear Mr. R., Last year German employees worked around 1.7 billion hours of overtime. Not even every second was remunerated. The employees provided around 900 million hours for lukewarm. There is a lot of potential for conflict.
With trust-based working hours, employees can largely organize their working hours independently. Only the number of hours per week is set. The fact that your employer is now introducing electronic time and attendance is probably due to a ruling by the European Court of Justice. In 2019, he decided that working time recording in the EU must be carried out using an objective, reliable and accessible system. The documentation requirements according to the Working Hours Act that were previously applicable in Germany no longer appear to be sufficient according to this requirement. As a precaution, many employers are therefore switching to precise documentation of working hours.
It is no secret that people with trust-based working hours often work more than they have to according to the contract. The question of whether overtime has to be paid or can be celebrated depends on many aspects. If you are entitled to remuneration or overtime compensation, your employer must not simply ignore these hours when changing the working time model. However, it is often not that easy to answer whether this claim exists.
Surprisingly, there is no general rule of law that overtime is to be paid or may be celebrated. Some employment or collective agreements provide for this, but not all. If there is no regulation, the remuneration obligation depends on whether the employee could expect payment under the circumstances. The Federal Labor Court is based, among other things, on the amount of earnings. In the case of employees whose salary exceeds the assessment ceiling in the statutory pension insurance, it is assumed that separate remuneration is not to be expected. Employees who earn less, on the other hand, must in principle receive compensation for overtime.
So it depends on your specific contractual arrangement and – if there are none – on your position and your salary. Employment contracts also often contain so-called flat-rate clauses that could get in your way. They state that a certain number of overtime hours should already be paid with the normal monthly wage. However, the clauses have their pitfalls. They must not be formulated too broadly, otherwise they are ineffective.
But there are other hurdles: Overtime can expire. Here, too, it is necessary to take a look at the employment contract. Many contracts contain a so-called preclusive period, which provides for a timely compensation of claims, including overtime. This period must be at least three months – otherwise this clause is also invalid. In addition, overtime is statute-barred after three years.
In the event of a dispute, you are also fully obliged to provide evidence for the accumulated 100 hours of overtime. This means that you must be able to explain and prove for each individual hour when it was performed and that it was ordered or tolerated by the employer.
If your head is smoking now, go through the points step by step or seek advice. If there is a works council in your company, that is also an issue for them. If you are actually entitled to compensation or payment for overtime, your employer cannot decide overnight that the overtime will expire with a change of system.
Ina Reinsch is a lawyer, author and speaker in Munich. She mainly deals with the subject of labor law.