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No retention of salary as a result of negative hours

Sep 23, 15 • Employment LawNo Comments

If an employer and employee agree that overtime will be paid, the employer cannot simply bypass this agreement if less work was performed in the previous month as a result of a lower workload. A German court clarified this.

German employer does not want to pay overtime

In January, a German employee worked 10 hours less than agreed because of lower workload due to the holiday season. In February, when the holiday season was over, on the other hand, the workload was particularly high so that the employee worked 10 overtime hours. The German employer did not want to pay 10 overtime hours for February, but to offset them against the hours that were not worked in January.

In an early 2015 judgment, State Labor Court Rhineland-Palatinate held that this was not allowed, since the employer is generally responsible for allocating and dividing work. German Employers are in default of acceptance and must pay a salary when allocating employees less work than agreed. Employees do not even have to make a specific offer of their willingness to work, meaning that no “unpaid hours” occurred.

Working time account can be useful to employee and employer

If a working time account had been agreed by the parties, offsetting would have been possible. In principle, a working time account can show minus hours, thus offering a more flexible option for dividing up working hours in Germany.

Rhineland-Palatinate State Labor Court Judgment of March 18, 2015 – 4 Sa 529/14

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Ellen Pusch

Ellen Pusch specializes in employment law and inheritance law at our Munich office. She drafts and optimizes employment agreements as well as specific types of termination agreements and assists with restructuring projects and M&A transactions (transfers of undertakings).

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