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“U-turn” on overtime pay?

Since the CJEU decision of May 14, 2019 (Case C 55/18), there has been a boost in the case law on the remuneration of overtime.

Even though the CJEU was dealing with an issue of working time law at the time, the Emden Labor Court, among others, has taken this case law as an opportunity to shake up established guidelines of the BAG with regard to the obligation to remunerate overtime in various rulings (rulings of February 20, 2020 and September 24, 2020).

Decision of the LAG Düsseldorf

In its decision of September 23, 2020 (Case No. 14 Sa 296/20), the Düsseldorf Higher Labor Court (LAG Düsseldorf) has now addressed a particularly practice-relevant aspect and ruled to the detriment of companies. From a legal point of view, the issue was the extent to which there is an objective expectation of remuneration in accordance with Section 612 of the German Civil Code (BGB), insofar as so-called "services of a higher nature" are owed. Following the fundamental decision of the Federal Labor Court of August 17, 2011 (Case No. 5 AZR 406/10), it was henceforth settled case law that employees whose salary is above the contribution assessment ceiling for the DRV cannot successfully assert a claim for overtime pay.

Even though the Düsseldorf Higher Labor Court confirms this case law in principle, it deviates from it in one very significant aspect: It is true that employees who receive such comparatively high remuneration must assume that they will have to work overtime - but they may equally expect that the consideration for the agreed remuneration will be at most the legally permissible working time according to the provisions of working time law. Finally, the regulations of the ArbZG represent prohibition laws in this respect, with the consequence that a working time above the legally permissible framework cannot be legally agreed or demanded.

In the case decided, this resulted in a (partial) payment obligation on the part of the employer.

Practical relevance

If the core of this decision should prevail, this modification of the previous case law of the highest court will have considerable practical relevance. After all, it is not unusual for employees who earn a six-figure salary to work an average of 55-60 hours a week; however, these employees could now file a promising overtime lawsuit. With regard to these employees, companies must then pay even more attention to permissible defense mechanisms, such as preclusion periods.


Alexander Möller

Alexander Möller


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