Overtime

Notion

Overtime is any time worked in excess of the employee's normal schedule. In case of a high workload, the employee is in principle obliged to work it. The employer must compensate them in an appropriate manner. However, there are exceptions and special situations.

Distinction

Overtime must be distinguished from supplementary work. The compensation of these hours will not be done in the same way. The conditions for waiving the payment of these hours are different. The employer must also justify an exceptional need to impose supplementary work on his or her employees.

Overtime is what exceeds the employee's normal working hours but does not exceed the maximum working hours set by the Labor Act. The maximum working hours depend on the type of work performed by the employee.

Duty

Every employee is bound by a duty of loyalty to the employer. Except in special circumstances, they must work the overtime requested by their employer. If he or she fails to do so, the employer may take sanctions against him or her.

Employee's initiative

An employee sometimes realizes that overtime is necessary to safeguard the company's interests. His duty of loyalty requires him to work overtime. However, he cannot accumulate them without the knowledge of his employer.

On the other hand, when the employer knows or should have known that these extra hours were necessary, the employee has the right to payment of these hours or to their set-off by means of time off.

Exceptions

There are situations where it is not appropriate for the employer to require the employee to work overtime. These are mainly cases where the employee's health condition does not allow him or her to work hours beyond the contractual schedule. Pregnant women, nursing mothers, employees under the age of 18, employees who are partially unable to work and those with family responsibilities are in special situations.

In addition, the employer must take appropriate measures to limit overtime for his or her employees. If it is not a temporary need, but the extra hours accumulate over the course of the year, the employee may refuse to work them in certain circumstances.

Set-off

As a general rule, overtime may be set-off by time off of equal duration, by hourly pay plus 25% or at a rate of 100%. The method of compensation will depend mainly on the will of the parties.

In the event of a transfer of business, the employee does not lose the right to overtime compensation. It remains to be seen which, out the old or new employer the employee, the employee should address. 

If the overtime is compensated by time off, this time off must be granted within an appropriate period of time, otherwise it must be paid. The employer cannot wait years before granting compensatory leave to his employee.

When the company has to close temporarily, for example because of shortages or an epidemic, the employer may sometimes require the employee to take time off to set-off his or her overtime.

In addition, in the event of dismissal, the question of whether the employer may require the employee to make up overtime during the notice period will depend on the circumstances and the content of the employment contract.

Recording of working hours

To ensure that overtime is adequately compensated, the law requires employers to record the time worked by their employees. Certain employees who have a high degree of autonomy in the organization of their working time may benefit from a simplified registration or may not have to register their working time at all. They must comply with certain strict conditions.

Waiver

By means of a written agreement, the employee can waive the compensation of his overtime. However, this waiver is subject to several conditions of validity, such as the amount of the salary.

Executives and high managerial positions

Executives and high managerial positions occupy a special position within the company. They have great responsibilities. They are generally expected to work any overtime that is necessary.

Because of their high salary, they are usually not entitled to overtime pay. However, this is not always the case, especially if the working week of the executive or senior manager is fixed in writing.

Protection of personality

Every employee, whether a manager, employee or trainee, has the right to protection of his or her personality. In particular, the employer must ensure that his employees do not suffer burnout as a result of the amount of overtime worked, especially for executives who are particularly affected by this phenomenon. Failure to do so will result in the employer's liability.

Flexible working hours

Within the framework of flexible working hours, the employee can determine, within certain limits, the beginning and end of his working day as well as the length of his lunch break, in particular according to the constraints linked to his private life. This freedom can be problematic to the extent that the employer has less control over the hours worked. Hours worked in excess of normal working hours must be distinguished from overtime.

Fluctuating hours

In some companies, the year is punctuated by periods of increased and decreased activity. This can be the case when customers tend to group their orders during a certain period of the year.

The introduction of fluctuating working hours within the company is possible when authorized by a collective employment contract. This schedule allows the employer to fluctuate the weekly work schedule within certain limits. At the end of the year, the hours are compensated and do not constitute overtime.

Resetting

at the end of the year or during economic crises, the employer is tempted to reset the counters to zero and not compensate the overtime already worked. This system is in principle illegal, even if the workers agree to it.

Out of office

With the advancement of technology, most employees can work anywhere and anytime. When an employee responds to e-mails, works on a file or answers an employer's phone in the evening, at night or on the weekend, it will sometimes be overtime.

Secondary activity

It is sometimes necessary for some employees to work multiple jobs to support themselves financially. When different employers each require the employee to work overtime, the situation is tricky. Legal rest periods may not be respected, resulting in an increased risk of fatigue and work-related accidents.

Night work

Night work causes additional fatigue for the employee. The employer must respect certain specific rules, in particular concerning rest periods. The possibility for the employer to ask an employee to work overtime is very limited.