Whether overtime is paid in Germany depends on what your contract says, what hours you actually worked, and — crucially — whether you can prove them. Many employment contracts state that „all overtime is included in the salary”. Whether that clause is valid depends on your salary level. For most non-executive employees, it is not.
The starting position
Under § 612 BGB, work that is performed under circumstances where it could only reasonably be expected against payment is compensated. Overtime falls under this rule unless the contract validly excludes it.
Three scenarios:
- Contract is silent on overtime: overtime worked at the employer’s instruction (or with the employer’s knowledge and toleration) is paid at the normal hourly rate, plus any contractually agreed surcharge.
- Contract explicitly says „overtime is paid at €X” or „at the normal rate”: the contract governs. Overtime is paid as specified.
- Contract says „all overtime is included in the salary” (Abgeltungsklausel): the clause is subject to AGB-Kontrolle under § 307 BGB. For most employees the clause is invalid; for high earners it may be valid.
The Abgeltungsklausel and § 307 BGB
An „all overtime included” clause must be transparent — the employee must be able to know how much extra work is included for the salary. The BAG (1.9.2010, 5 AZR 517/09) has held:
- For employees earning below the Beitragsbemessungsgrenze for unemployment insurance (currently approximately €7,550/month gross in 2026 West Germany), generic „all overtime included” clauses are typically invalid under § 307 BGB for lack of transparency.
- For employees earning above this threshold (so-called Besserverdiener), the clause may be valid — these employees are presumed not to expect specific overtime pay in addition to a high salary.
- Where the clause specifies the number of overtime hours included (e.g., „up to 10 hours per month are covered by the salary”), the clause may be valid even for lower earners — for the specified scope. Overtime beyond the specified scope is then separately payable.
Calculating the overtime hourly rate
For most contracts, the overtime hourly rate equals the normal hourly rate. The formula:
Hourly rate = (gross monthly salary × 12) ÷ (52 × contractual weekly hours)
Example: €5,000 gross/month, 40 hours/week. Hourly rate = (5,000 × 12) ÷ (52 × 40) = €28.85.
If your contract specifies a surcharge for overtime (typically 25% for overtime, 50% for night/weekend, 100% for public holidays), the surcharge is added on top.
Burden of proof — the hardest part
Under German law, the employee bears the burden of proving:
- That the overtime hours were actually worked — typically by day-by-day records, timestamps, emails sent late at night, calendar entries, project deliverables.
- That the overtime was ordered, tolerated, or implicitly approved by the employer — typically by emails requesting the work, supervisor knowledge, project deadlines that could not be met within normal hours, or a documented work culture of overtime.
The recent ECJ case (CCOO v Deutsche Bank, C-55/18) and the BAG follow-up (BAG, 13.9.2022, 1 ABR 22/21) have shifted the framework substantially: employers in the EU must have an objective, reliable, and accessible time-recording system. Where the employer fails this duty, the BAG has held that the employee’s prima facie evidence is sufficient — the burden then shifts back to the employer to prove the overtime was not worked.
Statutory limits on working time
Under the Arbeitszeitgesetz (ArbZG):
- Daily working time may not exceed 8 hours (§ 3 ArbZG), extendable to 10 hours provided the average over 6 months does not exceed 8 hours per working day.
- Weekly working time must not exceed an average of 48 hours over 6 months.
- Rest periods: at least 11 consecutive hours between two working days (§ 5 ArbZG).
- Rest breaks during the working day: 30 minutes after 6 hours, 45 minutes after 9 hours (§ 4 ArbZG).
- Sunday and public holiday work is generally prohibited (§ 9 ArbZG), with sector exceptions.
Working time above these limits is not just an overtime-pay issue — it is a regulatory violation under the ArbZG, with fines for the employer of up to €15,000 per case. Persistent breaches by the employer can also be grounds for an extraordinary termination by the employee.
Time-recording obligation (BAG 13.9.2022, 1 ABR 22/21)
The BAG has held that every German employer is legally obliged to introduce an objective time-recording system covering all hours worked by every employee. This obligation:
- Applies to all employers, regardless of size or sector.
- Must record start, end, and breaks for each working day.
- Can be electronic or paper-based, but must be objective and accessible to the employee.
- Cannot validly be delegated solely to the employee (i.e., a trust-based „Vertrauensarbeitszeit” without any recording does not satisfy the obligation).
The federal government has been working on implementing legislation. Until it is enacted, the obligation derives from EU law via the BAG ruling and is directly enforceable. The implication for overtime claims: where the employer has not introduced an adequate recording system, the employee’s reasonable estimate of overtime is typically accepted, with the burden of disproof on the employer.
Overtime in practice — recovery process
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Build the evidence base
Day-by-day log of hours worked, supported by emails, calendar entries, and any electronic system data. Audit the last 3 years (statute of limitations).
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Calculate the claim
Hours × hourly rate (plus any surcharge). For chronic overtime patterns, this can quickly reach €20,000–€50,000.
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Geltendmachung within the Ausschlussfrist
A formal written claim asserting each pay period’s overtime within 3 months of the pay period’s due date. Where the Ausschlussfrist has run on older periods, the older periods are barred.
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Zahlungsklage if needed
Filed at the Arbeitsgericht. Most cases settle at the Gütetermin once the evidence is on the file. Streitwert = overtime amount.
The Ausschlussfrist trap on overtime
Special cases
Exempt employees (leitende Angestellte)
True leitende Angestellte under § 5(3) BetrVG (senior executives with substantial entrepreneurial responsibility) are typically not entitled to overtime pay even outside the Abgeltungsklausel rules. The threshold is high — formal job title is not enough; actual decision-making authority is required.
Part-time employees
For part-time employees, „overtime” means work beyond the contractually agreed hours but still below the standard full-time hours. The pay is calculated at the part-time hourly rate. Different surcharge rules may apply under collective agreements.
On-call work (Bereitschaftsdienst)
On-call work where the employee must be at a specified location and immediately available counts as working time and must be paid (though potentially at a lower agreed rate). On-call work where the employee can be anywhere and only respond if called (Rufbereitschaft) is partially working time only — the call-out periods are working time, the standby time is typically not.
Travel time
Time spent travelling for business — by car, train, plane — is typically working time where the employee is required to perform work duties during the travel or where the travel is itself the work task. Pure commuting time (home → primary workplace) is not working time.
Worked example
Software developer at a Cologne tech company, €68,000 gross/year, contractual 40-hour week. Contract states „all overtime included in salary” without specifying hours. Salary is below the €7,550/month threshold — clause is invalid.
Developer worked an average of 10 hours of overtime per week for the last 18 months — documented through Git commit timestamps, email logs, project sprint records.
Hourly rate: (68,000 ÷ 12 × 12) ÷ (52 × 40) = €32.69. Overtime hours: 10 × 52 × 1.5 years = 780 hours. Claim: 780 × €32.69 = €25,498. We file within the Ausschlussfrist for the recoverable months (~12 months recoverable, ~6 months already barred). Settled at €15,500 after employer disputes 30% of the hours. Net to the employee: €15,500 gross.