In case of conflict with the employer, employees generally first have a look into their employment contract. Should they realise that a provision is formulated to their disadvantage, they often give up any further action. However, this is often a mistake. Employment contracts regularly contain provisions that are invalid and therefore not enforceable.


Employment Contract Provision Symbol ImageProvisions governing remuneration for overtime generally invalid

Particularly conflicts concerning the remuneration of overtime will often be resolved in favour of the employee. The court will generally rule that provisions which are formulated too broadly are unenforceable. In this context, it should be known that clauses laid down in employment contracts constitute general terms and conditions. In view of protecting the weaker party, such conditions are governed by strict rules. If they do not comply with these rules they are unenforceable and will be replaced with statutory provisions.

Lack of transparency often implies invalidity

The highest German Labour Court ruled in this context that a provision, stipulating that the employee concerned had no right to remuneration for undetermined overtime due to operational requirements, was invalid. The Court stressed that for such a clause to be valid, it must be sufficiently clear and comprehensible. This implies an adequate description of the conditions set out, and the legal consequences triggered by the provision. The Court made clear that such a clause may not create unjustified discretion for the employer to refuse payment of overtime. The conditions and extent for paid overtime must be apparent for the employee at the moment of signing the contract.


Will I be paid if my contract contains an invalid provision?

Considering that an invalid provision results in a lacking remuneration regulation, the statutory rule laid down in §612 Sec.1 of the German Civil Code will fill the contractual void in such situations. This provision obliges the employer to pay overtime, if it is reasonable and expected that the work was performed for remuneration. Whether or not this is the case, is to be determined objectively. Relevant factors are common usage, the nature of the performance, its extent and duration and the relationship between employer and employee. Applying this objective standard regularly leads to high prospects of success for the employee in court proceedings. Broad provisions governing remuneration for overtime are virtually only enforceable in employment contracts of high earners (6.500 EUR+) since these employees cannot reasonably expect paid overtime when considering their high income.


Advice: Check the provisions of your employment contract

In conclusion, a second look at your employment contract is always worth it. If you doubt the validity of any provision laid down therein, feel free to contact our lawyers. We will gladly assist you in determining whether or not you have a right to paid overtime, and if so, to enforce your right.