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.

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