Article ZHAW Alumni
Time and again, after their employment relationship has ended, employees demand compensation for overtime worked. There are some hurdles to overcome here.
Overtime is the positive difference in time between the hours worked and the normal working hours. According to the Swiss Code of Obligations (SCO), working time is determined by agreement, practice, collective or standard employment contract. Thus, if a 40-hour workload was agreed in an employment contract and the employee performs 42 hours of operationally necessary work, two hours of overtime have been worked. Part-time employees may also work overtime.
A positive flexitime balance means no overtime
However, these overtime hours must be necessary for the company: they must either be authorised or subsequently approved. This distinguishes them from a positive flexitime balance. In the flexitime model, the employee has a certain amount of time autonomy: he decides when to work more and when to work less, usually in compliance with certain block times. If the employee voluntarily works more, this results in a positive flexitime balance. However, this is not overtime that is necessary for the company. And that has consequences: According to the Swiss Federal Supreme Court, in the terminated employment relationship it is the employee’s responsibility to work out a positive flexitime balance during the ordinary notice period. If this is no longer possible, the additional hours are forfeited without compensation. For this reason, it is also permissible to provide that, at the end of the year, a certain number of overtime hours expire without entitlement to compensation.
Compensation of overtime through time off
The 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 to compensate overtime with time off. This principle should be recalled, in particular, in connection with leave of absence. One often encounters formulations according to which holidays and any overtime are considered to be compensated with time off. With regard to overtime, however, this is only possible if the employee agrees. This agreement may already be contained in the employment contract or in personnel regulations. If the overtime work is not compensated by time off and nothing to the contrary has been agreed in writing, the employer must pay wages for the overtime work based on the standard wage plus a premium of at least one quarter. The parties may deviate from this provision by written agreement.
The enforceability of overtime
The employee who claims overtime must prove that he actually worked these hours and that they were operationally necessary — this is the case, for example, if overtime was authorised by the supervisor. However, if the employee works overtime without being asked to do so and fails to report this extra work to the employer immediately, he risks losing his claim. The situation is different if the employer knew or should have known about the overtime in any case and failed to intervene.
Practical tips for alumni
The question of whether and how much overtime has been worked is often a cause of concern for the courts. Especially if the working time was not recorded by a system. The employee’s own records can only allow the court to estimate if they are continuous. If the records are only made retrospectively, e.g. after termination of the employment relationship, there is a risk of forfeiture of these overtime hours. If the company does not maintain a time recording system, which often happens in practice despite the legal obligation, the overtime should be continuously noted in a separate calendar. In the case of time off, a check must be made as to whether the employee gave the necessary consent to the compensation.