Overtime not paid - How to enforce your claims

Millions of workers in Germany regularly work overtime — but they are not always paid for it. If your employer fails to pay for overtime, you are by no means without rights. This guide explains what entitlements you have, how to enforce them, and what deadlines you need to be aware of.

When are you entitled to overtime pay?

As a general rule, overtime must be paid unless otherwise agreed. The legal basis for this is Section 612(1) of the German Civil Code (BGB). According to this, remuneration is deemed to have been tacitly agreed if, given the circumstances, the work can only be expected to be performed in return for payment.

However, this is subject to the condition that the overtime was ordered, approved or at least tolerated by the employer. Anyone who stays on longer of their own accord, without the employer’s knowledge or approval, is generally not entitled to remuneration.

“Compensated by the salary” — is this valid?

Many employment contracts contain clauses such as “Overtime is covered by the salary”. The Federal Labour Court has repeatedly ruled that such blanket clauses are generally invalid if they do not clearly specify the extent of the overtime covered.

A clause such as “10 hours of overtime per month are covered by the salary” may be valid, as it is transparent and verifiable. A formulation such as “all overtime is covered”, on the other hand, is generally too vague and therefore invalid.

Exception: In the case of high earners — i.e. employees whose salary is significantly above the contribution assessment ceiling for statutory pension insurance — case law is more likely to accept a flat-rate compensation.

How many hours of overtime are permitted?

The Working Hours Act (ArbZG) sets clear limits:

If these limits are regularly exceeded, this constitutes a breach of the Working Hours Act. This is not only an administrative offence — it can also serve as grounds for employees to challenge their working conditions.

How to document overtime correctly

The burden of proof for overtime worked lies with the employee. Anyone who cannot provide evidence of their overtime will have a weak case in court. Careful documentation is therefore crucial.

Recommended evidence:

• Your own overtime log with the date, start and end times of your working hours
• Screenshots or printouts of digital time recording
• Emails or messages proving working hours outside normal working hours
• Witness statements from colleagues
• Work instructions or project documentation suggesting overtime

Since the Federal Labour Court’s ruling on working time recording, employers have generally been obliged to set up a system for recording working hours. If such a system exists, the times recorded there can serve as strong evidence.

Step by step: claiming overtime

1. Claim overtime in writing: Send your employer a written request for payment of overtime. Specify the exact number of hours and the period covered.

2. Set a deadline: Give your employer a reasonable deadline of two to three weeks to make the payment or respond to the overtime claim.

3. Wait for a response: If your employer does not respond or refuses to pay, you should consider the next step.

4. Seek legal advice: A specialist employment lawyer can assess your chances of success and help you enforce your claim.

5. Take legal action at the employment tribunal: As a last resort, you can take legal action to claim your overtime pay at the employment tribunal.

Limitation periods and time limits — act in good time

Limitation periods in employment contracts are often significantly shorter than the statutory limitation period. Check your employment contract carefully: if it contains a limitation or expiry period, you must assert your claims in writing within this period — otherwise they will lapse irrevocably.

Important: Limitation periods of less than three months are generally invalid in pre-formulated employment contracts.

Overtime: payment or time off in lieu?

Whether overtime is compensated in cash or through time off depends on the contractual agreement. In the absence of such a provision, you are generally entitled to cash payment.

Compensatory time off may only be required if this is provided for in the contract or collective agreement. The employer may not unilaterally ‘order’ compensatory time off without a contractual basis.

Frequently Asked Questions (FAQ)

Does my employer have to pay for overtime?

Generally, yes. Overtime that has been ordered, approved or tolerated must be paid — provided the employment contract does not contain a valid compensation clause.

What can I do if my employer refuses?

Request payment in writing. If the employer does not respond, you can take legal action to claim overtime pay before the employment tribunal. In the first instance before the employment tribunal, each party bears their own legal costs.

Is the clause “Overtime is compensated by the salary” valid?

Usually not. The Federal Labour Court generally considers such blanket clauses to be invalid, unless the scope of the overtime covered is clearly defined.

How long can I claim unpaid overtime?

The statutory limitation period is three years. Please note: Many employment contracts contain shorter limitation periods (often three months), which mean your claims lapse sooner.

Do I have to work overtime if my employer asks me to?

There is only a general obligation to work overtime if the employment contract, a collective agreement or a works agreement provides for this — or in the event of an emergency at the workplace.

How do I prove overtime in court?

You must specify exactly which days you worked and the times you worked. Your own records, time-recording systems and witness statements are suitable forms of evidence.

This article is for general information purposes only and does not replace individual legal advice. Every case is different — if you have specific questions, we recommend seeking legal advice at an early stage.