Overtime and extra hours are not paid, what now?

Extra hours can sometimes lead to disputes between employers and employees. It raises many questions: What is your boss allowed to ask you to do? How are extra hours compensated? Are the clauses in your employment contract enforceable? A labour law lawyer will clarify the factual and legal situation for you. He will examine the circumstances of your individual case and offer you competent legal advice. Of course, the expert will also support you in your claim for compensation. He knows exactly what the conditions are for enforcing your claims and will show you how to increase your chances of success. In practice, many employees fail with their claims - often simply because they were poorly prepared. Avoid making the same mistake.

As an employee in Switzerland, you are generally only obliged to work the contractually agreed workload. However, you may have to work more in exceptional circumstances. These hours must be paid separately - but not in every case.

What are extra hours?

Extra hours defined as the hours you work over and above the contractually agreed working hours. In common parlance, they are easily confused with so-called overtime. However, these are hours that exceed the maximum weekly working hours. The distinction between extra hours and overtime is important: regulations that deviate from the legal standard are only possible for extra hours.

The statutory maximum working hours that apply to you depend on your profession. If you are employed in an industrial company or in an office, you may work up to 45 hours per week. The same applies to technical and other employees as well as sales staff in large retail businesses. For all other sectors, the maximum working hours are set at 50 hours in the Labour Act (ArG) (Article 9 ArG).

Your regular working hours are determined by your employment contract or collective labour agreement. Extra hours are also possible for part-time employees. The corresponding regulations then apply analogously. In this case, extra hours are therefore the hours that exceed the part-time working hours agreed in the contract.

When are extra hours compulsory?

Whether your employer can demand extra hours from you depends on your employment contract - as does the question of whether this must be paid. Company agreements and collective labour agreements may also contain corresponding clauses. If these are missing, the handling of extra hours is governed by Article 321c of the Swiss Code of Obligations (CO). Two factors play an important role here: necessity and reasonableness.

1. Necessity: Sometimes the regular working hours are not sufficient to complete the work to be done. If organisational or economic reasons make it necessary, employers may therefore order extra hours. This is the case, for example, if other employees are absent, the work is very urgent or the workload is exceptionally high. Extra hours that could have been avoided through better organisation or other measures are not necessary.

2. Reasonableness: The ordered extra hours are only permissible if it is reasonable for you as an employee. Whether this is the case must be carefully checked in each case. The assessment is not only based on criteria such as the number and timing of the extra hours. Personal factors such as your family situation, your health and your individual performance must also be taken into account.

Do extra hours have to be paid?

Employers are legally obliged to compensate employees for extra hours worked (Article 321c, paragraph 3 CO). Compensation therefore includes not only the normal salary, but also a premium of 25 per cent. Alternatively, compensation in the form of time off for the same duration is possible. However, this requires an agreement between the two parties.

The statutory obligation to compensate is subject to one condition: it only applies if your employer has expressly ordered the extra hours or at least tacitly accepted it. In order to be able to assert a claim, compensation must not have been excluded. This would be perfectly possible within the scope of contractual freedom - and would lead to the failure of your claim.

If your employer refuses to compensate you for the extra hours you have worked, a lawyer specialising in labour law is a valuable source of help. The specialist knows the legal framework and is familiar with the legal pitfalls. They will review your contractual clauses and check whether the requirements for a claim have been met. The lawyer for labour law will have quickly identified the factual and legal situation.

If you are entitled to compensation or indemnification, the experienced lawyer will stand up for your rights - in court if necessary. Whether he is successful depends not only on his professional and practical skills, but also on how well you have worked in advance. As it is you who is demanding payment, you also bear the burden of proof. Generalised claims are not sufficient here: You must describe your extra hours in detail. Your employer then has the opportunity to dispute your statements. Both presentations involve considerable effort. It may therefore be worth negotiating with your boss first, despite hardened fronts. A settlement will save you both time and nerves.

A claim for compensation can only be enforced in court if you can prove it with appropriate evidence. If you only base your rights on a payslip, the chances of success are slim - even if the number of extra hours is documented there. You must plausibly explain on which days which extra hours were necessary. However, this is hardly possible retrospectively. For this reason, it is advisable to record the extra hours worked in writing from the outset. A detailed time journal makes it easier for you to provide evidence and can decide the outcome of proceedings. Record all important information here:

• Date, start and duration of the extra hours worked
• Exact activities you performed in each case
• Your place of work or assignment
• People you saw or worked with

Ideally, you should also note why the required work could not be completed within the regular working hours. If the extra hours wre expressly ordered, write down when and by whom this instruction was given. It is also helpful to have the time journal regularly countersigned by your line manager. This way you can clearly prove that your boss was aware of your extra hours.

If you have already worked extra hours and would like to claim payment, but there are no comprehensive records, then it is not only advisable to consult an experienced employment lawyer, but also to look for witnesses. If third parties support your statements, a judge can estimate the amount of extra hours in the event of a dispute. Written instructions, for example in the form of saved emails, also make it easier to provide evidence.

Even though each individual case is slightly different, there are a few points that often give rise to disputes. These are as follows:

Exceeding the maximum working hours: What are the legal consequences?

If you exceed your contractually agreed working hours, you are working extra hours. If you also exceed the statutory maximum working hours, you are working overtime. Much stricter rules apply to overtime than to extra hours: It is only permitted in exceptional cases and must be paid by the employer. Unlike extra hours, a written waiver is not possible. The amount of compensation here is also 125 percent of salary - including a supplement. Compensation in the form of time off is only possible if you, as an employee, wish to do so or at least agree to the compensation. A lawyer specialising in employment law will explain your rights to you.

Termination: What happens to your entitlements?

Are you dissatisfied with your employer and considering terminating your employment relationship? Do so - your rights will not change. If the requirements are met, you still have the option of having your extra hours paid out. Compensation in the form of time off is also possible. If you opt for this option, you will receive additional holiday days and your employment relationship will end earlier. However, the remaining period is not always sufficient to compensate for all extra hours worked. In this case, your employer is obliged to compensate each remaining hour of extra hours with 125 percent of the hourly wage. A labour law attorney will support you in asserting your rights.

How long can you assert your claim?

Under Swiss labour law, extra hours are only forfeited if a corresponding provision has been made in the employment contract or collective employment agreement. However, you should not take too long to assert your rights: The claim expires five years after it arises. You should therefore seek advice from a labour law attorney at an early stage.

How can an employment lawyer help you in the future?

It can sometimes be difficult to enforce a claim - even if you are in the right. This is particularly evident in labour law, as it complicates the hierarchical relationship between employees and employers. Bosses sometimes exert pressure to pursue their interests. Employees fear dismissal and waive their rights. An employment lawyer will support you and inform you about the following:

• whether you are obliged to work extra hours,
• when you are allowed to refuse extra hours,
• what claims you have and
• how you can enforce them.

You will benefit from the specialist's experience and expertise both in negotiations with your employer and in court.

Find a labour law lawyer you can trust

There are many ways to search for a lawyer for labour law. Recommendations from friends and relatives, research on the Internet, a look in local search directories - all of these can lead to success. But how do you know that a lawyer is right for you and your concerns?

GetYourLawyer's free lawyer search offers you certainty: this platform brings you together with the lawyers who are best suited to handle your case. An enquiry only takes a few minutes. Describe your case and then choose from up to three offers. GetYourLawyer will of course treat the information you provide confidentially. If you decide to award a mandate, the digital service is available to you right through to the final invoice. You can keep an eye on shared documents as well as the costs incurred.