HR-Glossar

Überstunden und Mehrarbeit (overtime and extra work)

When overtime must be paid in Germany, who has to prove what in a dispute and why blanket settlement clauses are usually void.

1. What are Überstunden und Mehrarbeit (overtime and extra work)?

Überstunden are hours worked beyond the contractually agreed working time. Mehrarbeit in the narrower sense means exceeding the statutory maximum working time; colloquially the two terms are used interchangeably.

Two questions have to be kept apart, and running them together causes most of the misunderstandings. The first is a matter of public law: how long may work be performed at all? That is governed by the Working Time Act, mandatorily and independently of any pay. The second is a matter of contract: must the extra work be paid? That follows from the employment contract, the works agreement and any collective agreement.

Where no express provision exists, Section 612 BGB applies: remuneration is deemed to have been tacitly agreed where, in the circumstances, the service is to be expected only against payment. For work carrying a customary expectation of payment that is the normal case – but not where remuneration is very high.

For groups bringing a standard contract into Germany, the second question is where the template usually fails. A clause providing that overtime is included in the salary is, in its unlimited form, regularly void here.

2. Origin and development

As long as work was tied to attendance, the question was simple: whoever was present longer worked longer. With trust-based working time, mobile work and management by results, that dissolved – and with it the ability to prove anything.

What has become decisive in practice is therefore: who has to prove what? The case law requires two things of the employee. They must set out on which days they worked from when until when – and they must set out that the overtime was occasioned by the employer: ordered, approved, tolerated, or necessary to complete the work owed.

When the Court of Justice of the European Union held that member states must require working time to be recorded, it was natural to expect this would shift the burden. The Federal Labour Court disagreed: the EU law duty to record serves health protection, not remuneration. It changes nothing about the burden of proof in a pay claim.

3. Core principles and how it works

Ordering overtime needs a basis

An employer cannot demand overtime at will. The obligation must follow from the contract, a works agreement, a collective agreement or – in emergencies – the duty of loyalty.

Expectation of payment under Section 612 BGB

Without an express provision, remuneration counts as agreed where the service is to be expected only against payment. Where remuneration is very high, that expectation is regularly absent.

A two-stage burden of proof

The employee must set out the hours worked and that the employer occasioned them. Only then must the employer respond in substance.

Occasioning in four forms

Ordered, approved, tolerated, or necessary to complete the work owed. Toleration is the practically most important case – anyone who knows that people regularly work longer and does nothing is tolerating it.

Blanket settlement clauses are usually void

A clause stating that all overtime is covered by the salary is, as a pre-formulated term, regularly non-transparent and therefore void under Section 307 BGB – because what is owed cannot be identified.

Time recording serves health protection

It is required under occupational safety law but does not shift the burden of proof in a pay dispute. In practice it helps both sides all the same.

Time off in lieu instead of payment

Permissible where agreed. Without an agreement the employer cannot order it unilaterally.

4. Who are Überstunden und Mehrarbeit (overtime and extra work) relevant for?

- Employees with regular extra work – for them documentation decides the claim. - Managers – their knowledge of extra work establishes toleration and with it the occasioning. - HR departments – they draft clauses that must withstand review of standard terms. - Payroll teams – premiums, working time accounts and payments come together with them. - Works councils – ordering extra work is subject to co-determination.

5. How it differs from related terms

- Overtime and maximum working time – the ArbZG limits how long work may be performed; the pay question is independent of it. Even unlawful overtime must be paid. - Overtime and an overtime premium – a premium arises only from a contract or collective agreement. Statute does not provide for one. - Overtime and premiums under Section 3b EStG – the tax-free premiums attach to the timing of the work, not to extra work. An overtime premium is not tax-free. - Overtime and the working time account – the account is the instrument for offsetting; it does not answer whether a claim to payment exists. - Overtime and on-site standby duty – standby duty is working time but can be remunerated on its own terms.

6. Variants and adaptations

Typical forms of provision and how well they hold up:

- Payment per hour, possibly with a premium – the clear case, unproblematic. - Time off in lieu – permissible where agreed; needs a rule on the deadline and on lapse. - Limited blanket settlement – a clause covering up to a stated number of hours per month holds up considerably better than an unlimited one, because what is owed stays identifiable. - Unlimited settlement clause – regularly void. - Trust-based working time – does not exclude overtime pay. It only shifts the management approach; the problems of proof become larger, not smaller. - Senior executives – with them the expectation of payment is more often absent; that does not release anyone from the working time limits where those apply.

7. Advantages and challenges

Advantages

  • Flexible coverage of order peaks without permanently increasing headcount
  • For employees, an earning opportunity where premiums have been agreed
  • Working time accounts allow offsetting instead of payment and smooth the workload
  • A clear provision gives both sides predictability
  • Documented extra work makes structural understaffing visible

Challenges

  • The burden of proof lies with the employee — without records the claim fails
  • Unlimited settlement clauses are void but continue to be used
  • Tolerated extra work creates claims although nobody ordered it
  • Trust-based working time makes proof harder for both sides
  • Overtime premiums are not tax-free under Section 3b EStG — a widespread error
  • Permanent extra work conceals a need for staff instead of solving it

8. Best practices for implementation

Put ordering and approval in writing

Who may order overtime and how it is approved. Without a procedure, toleration arises – and with it a claim nobody decided on.

Limit settlement clauses rather than opening them

A clause with a clear upper limit is more likely to survive review of standard terms than an unlimited one. The broad clause is not the safer one but the void one.

Record, including under trust-based working time

Recording is required under occupational safety law and, in a dispute, is the only solid basis for either side. Trust-based working time means trust in how people arrange their hours, not a waiver of records.

With permanent extra work, address the cause

Regular overtime is a capacity problem, not an instrument of flexibility. Paying for it permanently means paying for a position that has not been filled.

Check limitation clauses

Many claims fail not on the merits but on a contractual limitation period. Whether that clause is itself effective belongs checked too.

9. Tips for employers and employees

For employers

  • **Toleration creates claims** – looking away is not a refusal
  • **Unlimited settlement clauses are void** – Section 307 BGB, for lack of transparency
  • **Time recording serves health protection** – it does not shift the burden of proof, but it helps both sides
  • **Overtime premiums are not tax-free** – Section 3b EStG covers only the timing of the work

For employees

  • **Keep your own records** – the burden of proof lies with you
  • **Document the occasioning** – ordered, approved, tolerated or necessary
  • **Watch the limitation periods** – claims often lapse after a few months
  • **Trust-based working time does not exclude payment** – it only makes proof harder

10. Conclusion

With overtime, two questions must be kept apart. The Working Time Act determines how long work may be performed – mandatorily and independently of pay. Whether it is paid follows from the contract, a collective agreement or, failing any provision, from the expectation of payment under Section 612 BGB.

In practice the burden of proof decides, and it lies with the employee: they must set out the hours and that the employer occasioned them. The case law of the Court of Justice of the European Union on working time recording changed nothing here – the Federal Labour Court made clear that the duty to record serves health protection, not remuneration.

For employers the two common errors lie elsewhere. The first is the unlimited settlement clause: it is regularly void because what is owed does not stay identifiable – a limited clause carries further. This is the point at which a group standard contract usually needs changing, because the wording that works in other jurisdictions is precisely the wording that fails here. The second is toleration: anyone who knows that people regularly work longer and does nothing thereby creates a claim that nobody ordered.

A note on sources: the German Civil Code and the Works Constitution Act have official English versions, cited below. The Working Time Act does not (checked on 2026-09-26); its German text governs.

Sources

Related terms

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