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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