Whether your overtime is paid extra in Germany depends almost entirely on your contract — and on the standards the Federal Labor Court has imposed on overtime clauses.
The default rule
There is no general statutory entitlement to overtime pay or to a premium for overtime hours (the Mindestlohngesetz aside). If the contract is silent, overtime that is genuinely ordered or required is in principle compensable — but proving you worked it is the hard part.
Catch-all clauses are usually invalid
Many contracts contain a clause like: “Mehrarbeit ist mit dem Bruttogehalt abgegolten.” The Federal Labor Court has held that such open-ended catch-alls are invalid for ordinary employees because they fail the transparency requirement of § 307 BGB — the employee cannot tell how many hours they are committing to without extra pay (BAG, 1.9.2010, 5 AZR 517/09). A clause that quantifies the included amount (“up to 10 hours overtime per month are covered by the gross salary”) can survive.
The catch-all clause typically remains enforceable for genuinely senior employees who can themselves decide their working hours (leitende Angestellte) — but the bar for this category is high and rarely met by ordinary professionals.
What the Mindestlohngesetz adds
Regardless of the contract, every hour you work must be remunerated at no less than the statutory minimum wage. If your fixed salary divided by your total monthly hours (regular + overtime) falls below the minimum wage, the difference is owed. This is the most reliable basis for an overtime claim for lower-paid employees.
The proof problem
Even where a claim exists in principle, proving the hours is hard. You typically need to show, for each disputed hour, that the overtime was:
- Either expressly ordered by the employer; or
- Tolerated (the employer knew and did not object); or
- Necessary to perform the work assigned in the available time.
Useful evidence: calendar entries, badge swipes, Teams/Slack timestamps, emails sent at late hours, project deadlines that required the work, and (most powerful) any written instruction from the employer.
The ECJ time-recording judgment
Since the ECJ’s 2019 judgment (CCOO, C-55/18) and the BAG’s follow-on judgment of 13 September 2022 (1 ABR 22/21), employers are required to record working time. Many have not implemented this properly. Where the employer has not recorded the time, courts increasingly shift evidentiary burdens in the employee’s favour — making overtime claims more viable than they used to be.
The recording duty after the BAG ruling of 13 September 2022
The Federal Labor Court has held that employers in Germany are required to record working time for all employees (1 ABR 22/21, implementing the EU’s CCOO judgment). Many employers have not yet implemented this. Where the employer has no proper records, the burden of proof in overtime disputes shifts — the employer can no longer require the employee to prove every minute, because the employer’s own duty to record was breached. This significantly improves the prospects of an overtime claim that previously failed on evidentiary grounds.
What evidence carries weight
- Calendar entries with meeting times before 8 am or after 6 pm.
- Slack/Teams message timestamps outside core hours.
- Emails sent or replied to late at night.
- Badge swipes (Zutrittskarten) showing entry and exit times.
- Project deadline tracking showing impossibility of completion within contracted hours.
- Express instructions from the manager to work additional hours.
The senior-employee exemption
“Leitende Angestellte” (genuinely senior managers who can themselves decide working hours and pay) fall outside the ArbZG’s working-time limits and outside many overtime-pay clauses. The category is narrow: a job title alone is not enough. Practical tests: the employee has authority to hire and dismiss, autonomy over their own schedule, and a salary substantially above the standard pay scale.