Over­time and extra work hours are not the same thing and must be strictly dis­tin­guis­hed. Issues sur­roun­ding over­time and extra work hours are a con­stant source of con­cern for the courts. In the fol­lowing arti­cle, some princi­ples on over­time and extra work hours are cal­led to mind.

What is overtime?

Over­time is the posi­tive dif­fe­rence in time bet­ween the hours worked and the nor­mal working hours. Accord­ing to Art. 321c para. 1 SCO, the “nor­mal” working time is deter­mi­ned by agree­ment, prac­tice, collec­tive or stan­dard employ­ment con­tract. If, for example, a 40-hour workload has been agreed in an employ­ment con­tract and the employee has per­for­med 42 hours of (ope­ra­tio­nally necessary) work, two hours of over­time have been worked. It should be noted that the wee­kly working time is not necessa­rily the man­da­tory refe­rence value. It is left to the par­ties to deter­mine this. For example, a daily workload of 8 hours can also be agreed. It is also pos­si­ble for part-time employees to work over­time, namely if they work bey­ond the agreed part-time workload. If, for example, it is agreed that a female cashier is to work 14 hours a week and she sub­se­quently works 16 hours, she has worked two hours of over­time. If there is no evi­dence of con­trac­tual or nor­mal working hours, there can be no over­time. If, for example, a con­tract sta­tes that an employee is to work “at least” 40 hours and he sub­se­quently works 41 hours in one week, no over­time has been worked.

Obli­ga­tion to perform

Art. 321c para. 1 SCO sti­pu­la­tes the employee’s obli­ga­tion to work over­time, in addi­tion to the agreed or usual working hours or those sti­pu­la­ted in a collec­tive or stan­dard employ­ment con­tract, if it is necessary and rea­son­able for the employee. Over­time is necessary if it has been aut­ho­ri­sed by the employer. Neces­sity is also assu­med if the employee works over­time on his own initia­tive and reports this to the employer. In this case, in the absence of the employer’s inter­ven­tion, it can be assu­med that the employer appro­ves the over­time as necessary for the com­pany. If the employee fails to notify the employer of the over­time worked on his own initia­tive, he risks losing his enti­t­le­ment. The employee’s claim is only pro­tec­ted if there are indi­ca­ti­ons that the employer was aware of the employee working over­time even without direct noti­fi­ca­tion. Thus, if an employee accu­mu­la­tes over­time over a period of mon­ths or even over a period of years without aut­ho­ri­sa­tion from the employer and then claims this (often upon ter­mi­na­tion of employ­ment), the employee only has a chance of suc­cess if he can prove that the employer knew or, accord­ing to the cir­cum­s­tan­ces, should have known about these over­time hours.

Over­time work, howe­ver, not only requi­res neces­sity in the employer’s com­pany, but also rea­son­ab­leness on the part of the employee. In par­ti­cu­lar, the extent to which the employee’s pri­vate and family life is dis­tur­bed by the over­time work must be con­si­de­red, as well as whe­ther the employer’s eco­no­mic inte­rests could easily have been satis­fied by means other than over­time work.

Com­pen­sa­tion through time off

Art. 321c para. 2 SCO sti­pu­la­tes that, with the con­sent of the employee, the employer may, wit­hin a rea­son­able period of time, com­pen­sate over­time work with time off of at least the same dura­tion. Accord­in­gly, the employee’s con­sent is requi­red for the com­pen­sa­tion of over­time with time off. The agree­ment to com­pen­sate for over­time with time off is not sub­ject to any for­mal requi­re­ments and the­re­fore can also be implied or sti­pu­la­ted in advance in the employ­ment con­tract. This principle should be recal­led, espe­cially in con­nec­tion with leave of absence. One often encoun­ters for­mu­la­ti­ons accord­ing to which holi­days and any over­time are deemed to be com­pen­sa­ted with time off. With regard to over­time, howe­ver, this is only pos­si­ble with the employee’s con­sent. This con­sent may already be inclu­ded in the employ­ment contract.

The law does not spe­cify what is meant by a rea­son­able period of time. In this respect, an ana­logy to the regu­la­tion in the Employ­ment Act on over­time comes to mind, wher­eby com­pen­sa­tion should take place wit­hin 14 weeks, at the latest wit­hin one year, by means of time off of equal dura­tion. Unless the par­ties have agreed other­wise, the com­pen­sa­tion for over­time is to be made without pre­mium at a ratio of 1:1 to the over­time work performed.

Over­time premium

If the over­time work is not com­pen­sa­ted by time off and if not­hing else has been agreed in wri­ting, the employer must pay wages for the over­time work, which are cal­cu­la­ted accord­ing to the nor­mal wage plus a pre­mium of at least one quar­ter (Art. 321c para. 3 SCO). The nor­mal wage also inclu­des the share of the 13th month’s wage (but not the vol­un­tary bonus) as well as the regu­lar allowances.

Arti­cles 321c para. 2 and 3 SCO are dis­cre­tio­nary in nature. This means that the par­ties may deviate from these pro­vi­si­ons by writ­ten agree­ment. The par­ties may, for example, pro­vide that the remu­ne­ra­tion for over­time is inclu­ded in the wage, or that over­time is paid without a pre­mium, or that over­time worked is com­pen­sa­ted by an extra week of holi­day, etc. The par­ties may, howe­ver, waive such a pre­mium in advance. Howe­ver, a wai­ver of such a pre­mium in advance must be rela­ted to the acti­vity pro­vi­ded for in the con­tract and may not con­cern an addi­tio­nal, dif­fe­rent type of employ­ment, even less so if it ent­ails con­si­derable extra work.

Wai­ver of over­time worked?

Accord­ing to the case law of the Federal Supreme Court, a wai­ver by the employee of the remu­ne­ra­tion for over­time worked, which was not pre­viously wai­ved pur­suant to Art. 321c para. 3 SCO and is thus owed, is gene­rally inad­mis­si­ble in the con­text of Art. 341 para. 1 SCO.

Howe­ver, accord­ing to the Federal Supreme Court, Art. 341 para. 1 SCO does not apply if the employee wai­ves wages for over­time already worked in return for appro­priate con­si­de­ra­tion, e.g. in the con­text of a sett­le­ment, pro­vi­ded this is based on mutual con­ces­sion and leads to appro­priate compensation.

Enfor­cea­bi­lity of overtime

Accord­ing to aca­de­mic rese­arch and legal pre­ce­dent, an employee who claims over­time must prove that he actually worked these hours and that they were necessary for ope­ra­tio­nal rea­sons. Prac­tice shows that, because of this appor­ti­onment of the bur­den of proof, over­time lawsuits often end in favour of the clai­ming employee. The­re­fore, the ques­tion ari­ses as to whe­ther the bur­den of proof should not be rever­sed if the employer has not or only insuf­fi­ci­ently ful­fil­led his obli­ga­tion to docu­ment the daily and wee­kly working hours accord­ing to Art. 73 para. 1 lit. c ArGV 1 or if in a lawsuit he refu­ses to sub­mit the docu­ments that are actually available.

Accord­ing to the case law of the Federal Supreme Court, howe­ver, such a rever­sal of the bur­den of proof can only be assu­med in excep­tio­nal cases of actual obst­ruc­tion of evi­dence, e.g. if an employer inten­tio­nally des­troys the working time docu­ments that are actually avail­able in view of a pen­ding civil case, in order to make it impos­si­ble for the employee to prove that he worked over­time. Easing of the bur­den of proof, howe­ver, is con­ceiva­ble and fre­quent. For example, an employee’s own record of working hours or working time con­trol can be admit­ted as evi­dence. If the judge assu­mes that over­time has been worked in principle, he will then esti­mate the quan­tity of over­time worked with some degree of pro­ba­bi­lity wit­hin the frame­work of Art. 42 para. 2 SCO. Howe­ver, can­to­nal court prac­tice does not seem to be uni­form in this regard. There are jud­ges who only admit such lists pre­pa­red by the employee hims­elf as evi­dence if they have been con­ti­nuously updated during the employ­ment rela­ti­ons­hip. In con­trast, lists that are only drawn up in con­nec­tion with the lawsuit have very little pro­ba­tive value.

What are extra work hours?

A dis­tinc­tion must be made bet­ween over­time and extra work hours. Extra work hours are unders­tood to be the excee­ding of the maxi­mum working hours as pro­vi­ded for in the Employ­ment Act (ArG). The maxi­mum wee­kly working time for employees in indus­trial enter­pri­ses as well as for office staff, tech­ni­cal and “other” employees, inclu­ding sales staff in large retail enter­pri­ses, is 45 hours (Art. 9 para. 1 lit. a ArG). For all “other” employees the maxi­mum working time is 50 hours (Art. 9 para. 1 lit. b ArG). This lat­ter pro­vi­sion mainly covers workers who carry out manual acti­vi­ties out­side indus­try (“com­mer­cial craftsmen”).

Thus, for example, if an office employee whose employ­ment con­tract pro­vi­des for a 40-hour workload per week works 47 hours per week, tech­ni­cally spea­king he works five hours of over­time and two extra work hours. This dif­fe­ren­tia­tion makes sense because the par­ties may make an agree­ment that devia­tes from the law with regard to over­time (e.g. that the over­time is inclu­ded in the wage); the regu­la­tion regar­ding extra work hours, on the other hand, is man­da­tory. This means that extra work hours must eit­her be com­pen­sa­ted or paid for with a pre­mium, even if some­thing else had been agreed in a con­tract. In the example shown, 2 hours must be com­pen­sa­ted or paid with a pre­mium in any case (if the extra work hours exceed 60 hours per year; see below).

It should be noted, howe­ver, that the maxi­mum working time pro­vi­si­ons of the Employ­ment Act do not apply to “senior exe­cu­ti­ves”. Accord­ing to an easy-to-remem­ber for­mula, a “hig­her mana­ge­rial employee” in the employer’s sense is an employee at the “levers of power”; he must the­re­fore exer­cise employer-like func­tions (e.g. inde­pen­dent hiring and firing of staff).

Excee­ding the maxi­mum working time

The maxi­mum wee­kly working time may only be excee­ded under cer­tain con­di­ti­ons, which under employ­ment law then give rise to over­time. This is the case when work is urgent or there is extra­or­di­nary pres­sure of work, when invent­ories are being taken, accounts are being clo­sed and when liqui­da­tion work is being done to pre­vent or eli­mi­nate ope­ra­tio­nal dis­rup­ti­ons, inso­far as the employer can­not be expec­ted to take other pre­cau­ti­ons (Art. 12 para. 1 ArG).

The maxi­mum num­ber of over­time hours allo­wed per calen­dar year is lin­ked to the wee­kly working hours of Art. 9 para. 1 ArG: 140 hours for employees with a maxi­mum wee­kly working time of 50 hours and 170 hours for employees with a maxi­mum wee­kly working time of 45 hours (Art. 12 para. 2 ArG).

Com­pen­sa­tion and premium

Extra work hours must be paid with a wage pre­mium of 25%, wher­eby, as in the cal­cu­la­tion of the over­time pre­mium, a share of the 13th month’s wage and regu­lar allo­wan­ces must also be taken into account. Howe­ver, employees for whom the maxi­mum working time is 45 hours per week are only com­pen­sa­ted with this pre­mium if the extra work hours exceed 60 hours in a calen­dar year (Art. 13 para. 1 ArG). This means that no pre­mium is due for the first 60 hours of extra work hours.

Ins­tead of paying out extra work hours, it is per­mis­si­ble, with the agree­ment of the employee, to com­pen­sate for this, wit­hin a rea­son­able period of time, with time off of equal dura­tion (Art. 13 para. 2 ArG). Howe­ver, a com­plete con­trac­tual exclu­sion — i.e. neit­her pre­mium nor com­pen­sa­tion — is not pos­si­ble because the legal regu­la­tion, as men­tio­ned above, is of a man­da­tory nature.

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