Overtime

Overtime / Überstunden

February 12, 2024

Working time law

From an employee protection point of view, there are various regulations on working hours, their maximum duration, rest periods, breaks and organisation. Statutory provisions on this can be found in particular in the German Working Hours Act (ArbZG), but also in the German Youth Labour Protection Act (JArbSchG), the German Maternity Protection Act (MuSchG) and the shop opening regulations of the individual federal states. These regulations are classified as public law and therefore do not establish any direct obligations between the parties to the employment relationship, such as the employee's obligation to work at the agreed times or the employer's obligation to pay remuneration.

The Working Hours Act does not apply to the employment relationships of senior executives, chief physicians and employees working in the liturgical area of churches and religious communities, whereby certain separate regulations are provided within the law for the public sector.

Principles of the applicable working time

The above-mentioned provisions only regulate the public-law framework of working hours, while the exact scope of the work obligation to which the employee must adhere is determined solely by the provisions of the employment contract and, if applicable, the collective agreement.

As a rule, the employment contract specifies the working hours per week and the number of working days per week, i.e. approximately 40 hours per week on 5 working days. In most cases, it is also stipulated how the times that exceed these agreed regular working hours are to be compensated.

It is also possible to agree so-called "work on call" within the narrow limits of Section 12 of the German Part-Time Employment Act (TzBfG). This means that there is an agreed basic weekly working time, which the employer can increase or decrease if necessary, but to an extent limited by Section 12 TzBfG (maximum 25% of the minimum working time in addition or 20% of the maximum working time less). Furthermore, the time frame within which the called-off work can take place must be agreed and the employer must give at least 4 days' notice.

Daily working time according to the ArbZG

According to § 3 ArbZG, the daily working time may not exceed 8 hours without the scheduled rest breaks. Working time includes the time from the start to the end of work, i.e. all of the employee's activities associated with the business. Working time generally begins when the employee arrives at the workplace and ends when they leave it.

Exceptionally, the daily working time can be extended to 10 hours if the employee does not work more than 8 hours per day on average within 6 calendar months. In addition, a collective agreement or a works agreement may stipulate that the 8 hours of daily working time may also be exceeded on a permanent basis, provided that there is a regular and significant amount of on-call work or standby duty and it is ensured that the employee's health is not jeopardised.

Rest breaks and rest periods according to the ArbZG

Rest breaks and rest periods mean a complete release from the obligation to work, whereby the employee is free to decide how to use the time.

Section 4 ArbZG stipulates that employees must be granted at least half an hour's rest if they work for more than 6 hours and at least three quarters of an hour if they work for more than 9 hours. In principle, the breaks can also be divided into several sections, each of which must last at least 15 minutes. In this context, on-call duty and the associated inactive periods and rest periods are deemed to be working time as a whole. Rest breaks in this sense are predetermined interruptions of work during which the employee is neither required to perform work nor to be available for it. For the requirement of prior determination, it is sufficient if a time frame is fixed at the beginning of the day.

It is therefore prohibited to employ an employee for more than 6 hours without a break. A breach of this obligation by the employer can also be penalised with a fine or penalty in accordance with the ArbZG. However, the employer can also order longer breaks.

After the end of working hours, the employer must grant an uninterrupted rest period of at least 11 hours in accordance with Section 5 (1) ArbZG, although in certain sectors, such as hospitals or care facilities, the rest periods may be shortened in accordance with Section 5 (2) and (3) ArbZG.

Work on Sundays and public holidays in accordance with the ArbZG

According to Section 9 ArbZG, work on Sundays and public holidays is generally not permitted, although extensive exceptions are regulated in Section 10 (1) ArbZG. These exceptions include, for example, work in hospitals, in the cultural and leisure sector and in the media, but also the cleaning and maintenance of company facilities. Further exceptions can be authorised by regulations in ordinances or by the supervisory authority.

If an exception applies and the employer employs workers on a Sunday or public holiday, at least 15 Sundays per year must be kept free of work in accordance with Section 11 para. 1 ArbZG and the provisions of the ArbZG set out above apply in accordance with Section 11 para. 2 with regard to working and rest times and breaks. In addition, the employer must grant a substitute rest day in accordance with § 11 Para. 3, within 2 weeks in the case of work on Sundays and within 8 weeks in the case of work on public holidays. However, the substitute rest day can also fall on a day off from the outset, such as a work-free Saturday or weekday - Section 11 ArbZG does not grant an entitlement to be released from work on a working day with continued payment of wages.

Night and shift work

For employees who work at night and/or in shifts, there are extensive protective provisions in the ArbZG due to the special burdens associated with this. Night work according to the ArbZG is working time of more than two hours between 11.00 p.m. and 6.00 a.m. (if applicable, the start of the seven-hour night period, between 10.00 p.m. and midnight, may be modified by collective agreement).

According to Section 2 (5) ArbZG, night workers are those who perform night work as part of a rotating shift system or on at least 48 days per year. In deviation from Section 3 para. 2 ArbZG, if the daily working time is extended beyond 8 hours, the average of 8 hours to be observed is calculated over a compensation period of one month or 4 weeks, Section 6 para. 2 ArbZG. They are entitled to regular occupational health examinations (§ 6 Para. 3) and to appropriate compensation for the inconvenience through time off in lieu or payment of a supplement, § 6 Para. 5. The compensation must be in proportion to the inconvenience caused by night work. The employer has the choice between granting days off with continued payment of wages (including additional leave) or paying a separate allowance, whereby compensatory time off does not have priority. This statutory regulation of the right to compensation takes precedence over a regulation in a collective agreement. The general provision of Section 6 (5) can be further specified by agreements in the employment contract (also in the form of general terms and conditions), e.g. by specifying the form of compensation in advance. On-call duty at night also counts as night work subject to compensation within the meaning of Section 6 (5). According to case law, a supplement of 25% is deemed appropriate if night work is performed periodically, and 10% or 12% in professions that necessarily involve night work and are carried out in the public interest.

According to § 6 Para. 4, night workers are entitled to a transfer to a job without night work if they request this and the night work jeopardises their health according to the occupational health examination or if a child under the age of 12 or a relative in need of serious care lives in their household who cannot be cared for by another household member. The employer can object that the transfer is contrary to urgent operational requirements.