I work with five other employees in a store that is very active. During busy periods, I have to work a lot of overtime.
According to my employment contract, my weekly working time is 45 hours. Overtime is "compensated with the salary".
I rarely work 45 hours. According to my records, I often work around 60 hours, often several weeks in a row.
I am satisfied with the salary for 45 hours. I don't mind 5 hours of overtime per week either. But don't I deserve more pay for a full 15 hours of overtime?
Mara P.
In order to assess Mara's case, we must address an important issue in Swiss labor law: The limit at which overtime exists.
Flexible Rules for Overtime and other extra Hours
Swiss employees often exceed the working hours agreed in their contracts. Depending on the time system and the reason, overtime is assigned to different categories. For example, make-up time, positive flexitime or overtime.
The Code of Obligations allows for a great deal of flexibility. For example, the payment or compensation of overtime can be contractually bound away, as is the case with Mara.
This flexibility is not unlimited. In one decision, for example, the Federal Supreme Court stated that the salary must be sufficiently high and must, for example, exceed any minimum wages. In another decision, it emphasized that the severance clause cannot apply if the necessary overtime exceeds the extent of what is foreseeable.
Mara is therefore right to ask whether it is legally permissible to require up to 15 hours of overtime per week.
Legal maximum Working Time of 45 or 50 Hours Depending on the Activity.
The Labor Law prescribes a maximum weekly working time. For employees in industrial companies, for office personnel and technical employees as well as for sales personnel in large retail companies, this is 45 hours per week. For all others, it is 50 hours.
For Mara in her small business in the retail trade, the 50 hours apply. As already mentioned, overtime from 45 to 50 hours can be arranged flexibly for her.
Stricter Rules for Statutory Overtime Work
What goes beyond the 50 hours is no longer overtime, but statutory overtime. Other rules apply to statutory overtime work, except for the top management of a company. This is also the case for Mara.
statutory overtime work may only be performed under certain conditions. For example, in case of urgency or extraordinary workload. Employees with a weekly maximum of 50 hours may not work more than 140 hours of overtime per year, employees with 45 hours may not work more than 170 hours.
In Mara's case, for example, this means that after fourteen weeks of 10 hours of overtime work each, the work must stop in any case (probably sooner).
Payment with Supplement or Compensation Mandatory
Statutory overtime work is treated differently than overtime. Mara's right to compensation or payment for statutory overtime cannot be contractually waived. For statutory overtime work in excess of 50 hours per week, the employer must allow compensation or pay out the hours.
In addition to the normal wage, Mara benefits from a wage supplement of 25%!
(For employees with a maximum workweek of 45 hours, payment with supplement or compensation is not mandatory until the 61st hour).
Compensation Cannot be Postponed forever
Compensation for statutory overtime with time off of equal duration must be made within a reasonable period of time. Normally, this is a period of 14 weeks. The employer may also agree on a longer period with the employee. The maximum period is 12 months.
Conclusion and Recommendations
Mara's employer must compensate her for statutory overtime work and ensure that she does not exceed the threshold of 140 hours per year. If necessary, he can also agree with her that she compensates overtime hours with free time.
Mara is advised to compile all the overtime hours she has worked to date and to claim payment for them from her employer. If she has difficulties with this, she can count on the support of the legal service of Employees Switzerland.
By the way, Mara has done well to record her working hours correctly. This way, she can clearly prove how much she has worked. We recommend the same to you. It's best to have your employer check the recording of your working hours.
