Overtime (Überstunden) must be paid if it was ordered, approved or at least knowingly tolerated by the employer and there is no effective provision on time off in lieu or on compensation. The legal basis is § 611a BGB in conjunction with § 612 para. 1 BGB, under which work that, in the circumstances, can only be expected in return for remuneration must also be paid.
In practice, employers and employees frequently disagree on whether overtime was actually ordered, whether a flat-rate compensation clause (Pauschalabgeltungsklausel) in the employment contract is effective and within which time limit the claim must be asserted. This article shows which legal requirements must be met and what employees should bear in mind when enforcing their claim.
Legal basis: when is there an entitlement to overtime pay?
The employment contract (Arbeitsvertrag) usually sets out the agreed working time, for example 40 hours per week. If an employee works beyond this, it constitutes overtime (Überstunden). A statutory entitlement to payment arises from § 612 para. 1 BGB if remuneration was to be expected in the circumstances. This is normally the case, as work is typically not performed free of charge. However, according to the case law of the Federal Labour Court (Bundesarbeitsgericht), an exception usually applies to services of a higher kind (Dienste höherer Art) or where the salary exceeds the contribution assessment ceiling of the statutory pension insurance (Beitragsbemessungsgrenze der Rentenversicherung), which in 2026 means above 8.450 Euro gross per month.
If the employment contract or an applicable collective agreement (Tarifvertrag) contains specific provisions on overtime pay, such as supplements or fixed rates, these take precedence. If there is no provision, the customary remuneration under § 612 para. 2 BGB is decisive, which as a rule is the regular hourly wage.
Ordered, approved or tolerated: the decisive requirement
For a claim to remuneration, it is not sufficient that overtime was objectively worked. According to the established case law of the Federal Labour Court (Bundesarbeitsgericht), the employee must set out and, in the event of a dispute, prove that the overtime was ordered, approved or at least tolerated by the employer. Tolerated means that the employer knew about the additional work, accepted it and did nothing to prevent further overtime.
This burden of presentation and proof (Darlegungs- und Beweislast) lies in principle with the employee. In practice this means that anyone wishing to sue for overtime must state specifically on which days how many hours were worked beyond the regular working time and that the employer ordered, approved or knowingly tolerated the overtime.
Payment or time off in lieu: which takes priority?
Whether overtime is paid out or compensated by time off in lieu (Freizeitausgleich) depends first of all on contractual or collective agreement provisions. If the employment contract expressly provides for time off in lieu, the employer may choose this option, provided it is granted within a reasonable period. If there is no such provision, the employee is in principle entitled to payment in money.
It is also important that a claim that has already arisen may not be converted unilaterally by the employer into time off in lieu if the employment contract does not provide for this. If the employment relationship ends before the time off in lieu has been granted, the claim is converted into a claim for payment.
Flat-rate compensation clauses in the employment contract
Many employment contracts contain clauses such as „Mit dem Gehalt sind sämtliche Überstunden abgegolten“ (all overtime is compensated by the salary). According to the case law of the Federal Labour Court (Bundesarbeitsgericht), such flat-rate compensation clauses (pauschale Abgeltungsklauseln) are only effective if they are sufficiently transparent and indicate the maximum number of overtime hours covered by the clause, for example in relation to the level of remuneration.
A clause that compensates „alle Überstunden“ (all overtime) on a flat-rate basis without limit violates the transparency requirement (Transparenzgebot) under § 307 para. 1 sentence 2 BGB and is invalid. In this case, remuneration is governed by § 612 BGB as if the clause had never existed, provided that payment for the overtime was to be expected in the circumstances. Irrespective of this, flat-rate compensation must not result in the pay for all hours worked falling below the statutory minimum wage (Mindestlohn), which since 1 January 2026 has been 13,90 Euro gross per hour.
- Clause does not state a specific number of hours: regularly invalid - Clause limits compensation to a certain number of hours per month: possibly effective - Salary above the contribution assessment ceiling of the pension insurance or services of a higher kind: there is often no expectation of payment for overtime at all
Observing limitation periods and cut-off periods
Overtime claims are subject to the standard limitation period (regelmäßige Verjährung) of three years under § 195 BGB. Pursuant to § 199 para. 1 BGB, the period begins at the end of the year in which the claim arose and the employee became aware of it or ought to have become aware of it.
Anyone wishing to claim overtime pay should check the time limit stated in the employment contract or collective agreement carefully and notify the employer of the claim in good time in the form required there, if in doubt in writing, so as not to lose it.
Proving overtime: working time recording as an aid
According to the decision of the Federal Labour Court (Bundesarbeitsgericht) of 13 September 2022 (Az. 1 ABR 22/21), employers are already obliged under § 3 para. 2 no. 1 ArbSchG (Occupational Health and Safety Act, Arbeitsschutzgesetz) to record the start, end and duration of their employees' daily working time (Arbeitszeiterfassung); an express provision in the Working Hours Act (Arbeitszeitgesetz) is currently only at the draft stage. According to the case law of the Federal Labour Court, however, this obligation does not change the burden of presentation and proof in proceedings for remuneration; it serves occupational safety and health. Existing time recording data can nevertheless be used as evidence in proceedings.
Irrespective of this operational obligation, it is advisable to keep your own time sheets showing the date, start and end of working time and breaks. Such records are important circumstantial evidence in court, even though on their own they do not replace the full burden of presentation.
What to do if the employer does not pay for the overtime?
If the employer does not pay despite the claim having fallen due, the claim should first be asserted in writing with a deadline. If this is unsuccessful, the remuneration can be claimed before the competent labour court (Arbeitsgericht). It should be noted that in labour court proceedings at first instance, under § 12a ArbGG each party bears its own lawyer's fees, regardless of the outcome of the proceedings.