Overtime in the event of termination: you are entitled to this

Overtime is not always paid off or paid out without further ado in the event of dismissal. We explain what happens to overtime worked when the employment relationship is terminated and how you can assert your claims.

Overtime in the event of termination: You are entitled to this

1. Do I still have to work overtime after termination??

Until the end of the employment relationship, your employer can in principle still instruct you to work overtime. However, this only applies if the labor or collective agreement or a company agreement obligates you to work overtime. Otherwise, overtime must be worked only in emergency situations, z. B. In the event of a system-critical IT emergency or flooding at the plant.

2. Must overtime always be paid?

Overtime must generally be compensated. Employees should actively demand payment after termination at the latest.

However, there are exceptions in which no wage can be demanded for overtime work. These are essentially the following:

Agreements exclude overtime pay

For the remuneration of overtime, the regulations of the respective labor or collective agreement or the company agreement must first be consulted. Here, it is usually determined whether and how overtime is remunerated.

Some labor or collective agreements restrict or exclude overtime pay. However, it is worth taking a closer look here, because some of these clauses are invalid.

Often, for example, a clause is included according to which any overtime should be compensated with the normal salary, d.h. that payment for overtime should not be made at all. Such compensation clauses sometimes fail because of the provisions of the German Civil Code on general terms and conditions (AGB) in § 305 ff. BGB.

Overtime pay may only be excluded "across the board" if the provision in the employment contract makes it clear which work activities are covered by the clause and are therefore not specially remunerated. In addition, total compensation per hour must not fall below the legal minimum wage.

In contrast, a regulation that only contains a clearly limited lump-sum compensation is permissible and effective. It is conceivable, for example, that overtime of up to 10% of the weekly working hours is compensated with the normal salary (and is remunerated above this amount).

Overtime worked by managers

For executives and highly qualified employees (z.B. (chief physicians, auditors, executives, …), those paid by commission or top earners are generally subject to stricter rules. Exclusion of overtime compensation is more likely here. If the contracts are silent on the remuneration of overtime, there is usually no entitlement to remuneration to be assumed.

employer did not agree with the respective overtime

According to the case law of the Federal Labor Court (BAG, Urt. v. 10.04.2013 – Az. 5 AZR 122/12) also requires that the overtime was ordered, approved, tolerated by the employer or necessary for the completion of the work owed. "Voluntary" overtime does not have to be compensated. The extra work must therefore have been either instructed by the employer or at least tacitly accepted afterwards.

3. Can overtime be forfeited after a termination?

No, overtime is not automatically lost upon termination. Employees can generally ask for either a monetary payment or compensatory time off during the notice period, even after you've been fired (more on that below). Contradictory clauses are generally invalid. The same applies here as already for the general exclusion of overtime pay.

However, you should be aware of exclusion periods in the employment or collective agreement (s.u.)!

4. Working off overtime after termination or paying it out

After a termination (whether by the employee or the employer), two options come into consideration for the open overtime:

There will be compensation in money

The amount of the payment is primarily based on the regulations in the employment or collective agreement. Often, overtime premiums are even specified there, according to which overtime is to be remunerated at a higher rate than normal working hours.

If there are no regulations in the contracts, the overtime will be paid at the regular hourly rate. If the hourly wage is not known, it can be calculated as follows:

The hourly wage (gross) is calculated from the monthly/weekly wage:

Monthly salary x 3 : 13 : Number of hours worked per week

Who therefore 3.If the employee works a gross salary of 3000 Euro per month for a working week of 40 hours, the gross salary per hour is 3000 x 3 : 13 : 40 = 17.31 Euro.

The employee receives compensatory time off in the amount of the overtime until the end of the notice period

However, this is only possible if the employee agrees to compensatory time off or if the employment contract/collective agreement provides for a corresponding agreement, z.B. a flexitime regulation. In principle, the employer may determine the location of the time off in lieu – unless the labor or collective bargaining agreement provides otherwise. The same applies to the basic choice as to whether the overtime is celebrated off or compensated in money.

If the employer releases you from work after the notice without pointing out that the overtime will also be compensated with the release, the overtime will remain.

The Federal Labor Court has ruled that the following wording is not sufficient: "You are irrevocably released from the obligation to perform your work duties. Vacation entitlements are granted in kind with the release from work."(BAG, judgment of 20.11.2019, REF: 5 AZR 578/18). The overtime compensation is not mentioned here. The employee can therefore demand payment for the overtime despite being released from work.

If it was contractually agreed that overtime would always be paid out, the employer cannot order that the overtime be deducted if the employee is released from work.

5. If the overtime is mentioned in the termination letter?

If you are giving notice yourself, you can mention the outstanding overtime in your letter of notice. While this is not mandatory, in many cases mentioning the overtime in the termination letter will save you a second letter.

The reason for this is that many labor and collective bargaining agreements stipulate sog. Provide for exclusion clauses. After that, you must assert any outstanding claims with the employer within a fairly short period of time (often six weeks) – and you must do so in writing (s.u.).

The assertion already in the letter of notice makes sense in the first place if you want to receive remuneration in money. If you would like to use your overtime as compensatory time off until the end of the notice period, you can also mention this in the letter of termination. However, it is usually the employer's decision whether to comply with this request. As explained above, it depends on the respective regulation in the employment or collective agreement whether the overtime is paid out or celebrated off.

The letter of termination should include z.B. use this wording to claim your overtime pay:

"With this letter, I am at the same time claiming compensation for overtime worked to date [If possible, refer to list and approval of overtime hours and attach supporting documents]. According to my calculation, the amount is [amount]. Also the remuneration for still resulting overtime I make herewith already valid."

If you still work overtime after the termination, you should ask your employer again in writing for payment of the time after your last day of work.

6. Three important tips for overtime after termination

Employees should take the following tips to heart after a termination in order to protect their overtime claims:

#Tip 1: Attention exclusion period: Act quickly!

Especially after a dismissal, you should check early on how much overtime you are entitled to and by when this should be claimed.

Employment contracts often contain exclusion clauses according to which certain or all claims arising from the employment contract must be asserted within a time limit and then expire. Collective bargaining agreements also often provide for similar provisions. This is important for claiming overtime, as overtime often accumulates over the course of months and is at risk of being forfeited due to an exclusion clause if not claimed in a timely manner.

As a rule, the claim must be made in writing. An exclusion clause often also contains the provision that claims demanded by the employee must be asserted in court in the second step. For this purpose, it is usually sufficient to file an action for protection against dismissal (Bundesarbeitsgericht, Urt. v. 19.03.2008 – Az. 5 AZR 429/07).

After the deadlines have expired, it is worth taking a closer look at the contract: According to the case law of the Federal Labor Court (Urt. v. 28.09.2005 – Az. 5 AZR 52/05) is a clause z.B. Invalid that provides for a preclusion period of less than three months.

#Tip 2: Document overtime

You should keep an accurate record of when you have worked overtime. Because you have to prove in court that the overtime was ordered or at least approved.

A claim before the labor court only has a chance of success if the employee can show exactly when he or she worked which overtime hours and that these were ordered by the employer or. have been accepted retrospectively.

You should therefore prepare precise overviews, records and receipts for overtime and, if possible, have them countersigned by your supervisor. Electronic time recording often exists. It is also possible to call witnesses to prove overtime – however, work colleagues will often be reluctant to testify against their employer.

#Tip 3: Do not sign a compensation declaration

Beware of exclusion declarations. You will destroy the entitlement to overtime pay.

When leaving employment, a compensation receipt is often at issue. The employer usually submits it individually or in connection with a settlement or termination agreement. By signing, the employee declares that all claims arising from the employment relationship are deemed to have been settled upon leaving the employment relationship. Such declarations are hard to challenge in retrospect – those who sign them have (also) legally waived all claims for overtime!

A common formulation is for example: "I confirm that no further claims from and in connection with the employment relationship and its termination, no matter on what legal grounds they are based in detail, whether known or unknown and regardless of when they arose, exist against the company."

7. Conclusion

  • After a dismissal, you only have to work overtime if the employment or collective bargaining agreement or. a company agreement obliges you to do so. Even in emergencies at work, you may have to make a claim in writing. Stay longer.
  • Overtime must generally be compensated. Contrary clauses in the employment contract are usually invalid.
  • If your employer has not authorized "voluntary" overtime, you cannot expect to be paid for it. Managers generally cannot demand payment for overtime work.
  • At the latest after the termination, you should claim the payment of your overtime in writing.
  • Instead of the payout in money is if necessary. also the "Abfeiern" of overtime possible. Prerequisite is that the employee agrees or that the contractual provisions allow it.