Search
Contact
Symbolbild zu Überstundenzuschlägen von Teilzeitbeschäftigten: Wecker neben Laptop
17.12.2024 | KPMG Law Insights

BAG: Part-time employees can also claim overtime pay

If full-time employees are entitled to overtime pay from the first hour of overtime, this must also apply to part-time employees, the Federal Labor Court (BAG) has ruled (judgment of December 5, 2024 – Ref. 8 AZR 370/20 – previously only available as a press release). A collective agreement provision according to which employees only receive overtime pay if they exceed the working hours of a full-time employee, regardless of their individual working hours, discriminates against part-time employees. In the specific case, the plaintiff is employed with a capacity of 40 percent. Her employment relationship is governed by a collective agreement concluded between the employer and the trade union ver.di. According to this agreement, overtime is subject to a surcharge. However, the collective agreement only defines overtime as hours that exceed the monthly working hours of a full-time employee. According to the collective agreement, full-time working hours are 38.5 hours per week. Part-time employees have therefore rarely benefited from overtime bonuses if they have worked more than their individual weekly working hours.

Part-time employees are entitled to remuneration in proportion to their working hours

The BAG had referred the question to the ECJ as to whether the collective bargaining regulation violated EU law. The ECJ affirmed this and answered the question in its ruling of July 24, 2024(C-184/22 and C-185/22) as follows The collective agreement regulation violates both Directive 97/81/EC on part-time work and the Equal Treatment Directive (2006/54/EC), as considerably more women than men were affected by the regulation. The ECJ had argued in the reference that overtime pay was regulated equally for all employees, in that everyone was entitled to the supplement if the limit of 38.5 hours was exceeded. However, part-time employees have to work a larger number of overtime hours without a supplement, while full-time employees can claim a supplement from the first overtime hour. This is inadmissible unequal treatment. The remuneration of part-time employees must correspond proportionately to their working hours to that of comparable full-time employees. Unequal treatment can be justified by objective reasons. However, the BAG did not see an objective reason. In particular, the BAG does not appear to follow the argument that a burden justifying the overtime bonus can only be assumed once the working hours applicable to full-time employees have been exceeded. The BAG awarded the plaintiff a time credit in the amount of the overtime premium as well as compensation for indirect discrimination on the basis of gender.

How employers should react to the BAG ruling

Until now, it has not been unusual for overtime bonuses to be paid only for hours worked in excess of the regular working hours of full-time employees. Corresponding regulations can often be found in collective agreements. From now on, they should apply the same standards for calculating overtime bonuses for their part-time employees as for full-time employees, i.e. they must be granted a bonus from the first hour of overtime in relation to their individual working hours if this is also the case for comparable full-time employees. Part-time employees can often be inadvertently discriminated against. There is a risk that part-time employees are unjustifiably disadvantaged not only in terms of pay, but also in terms of vacation arrangements, the allocation of tasks and access to company facilities. The discrimination of part-time employees is prohibited under Section 4 (1) TzBfG. If employers do not comply with the equal treatment requirement, they risk legal action. If the part-time employees are predominantly women, this may also constitute discrimination on grounds of gender and trigger a claim for compensation pursuant to Section 15 (2) AGG.

 

Explore #more

17.04.2025 | KPMG Law Insights

What the coalition agreement means for the financial sector

The coalition agreement between the CDU/CSU and SPD also has an impact on the financial sector. Here is an overview. Increasing the energy supply The…

17.04.2025 | KPMG Law Insights

AWG amendment provides for tougher penalties for sanction violations

Due to the ongoing Russian war of aggression against Ukraine, the EU wants to make it easier to prosecute violations of EU sanctions. The corresponding…

16.04.2025 | KPMG Law Insights

What the new digitization plans in the coalition agreement mean

The coalition agreement shows how the future government wants to shape Germany’s digital future. What do the plans mean for companies in concrete terms? Here…

14.04.2025 | KPMG Law Insights

How the new coalition wants to accelerate investment in infrastructure

The coalition agreement between the CDU/CSU and SPD marks a fundamental new beginning in German infrastructure policy. In view of a considerable investment backlog, the…

14.04.2025 | KPMG Law Insights

Coalition agreement 2025 and NKWS: Booster for environmental and planning law?

In the current coalition agreement, environmental and planning law is mentioned at various points throughout the coalition agreement, highlighting its great importance. However, the…

11.04.2025 | KPMG Law Insights

What’s next for foreign trade? The plans in the 2025 coalition agreement

Foreign trade and foreign trade have become particularly explosive in view of the new US tariffs. The CDU/CSU and SPD have agreed on the following…

11.04.2025 | KPMG Law Insights

Coalition agreement 2025: What the plans mean for the economy

The CDU/CSU and SPD have agreed on a coalition agreement. The central theme is the renewal of the promise of the social market economy. The…

10.04.2025 | KPMG Law Insights

Coalition agreement 2025: Housing construction on the move

In the coalition agreement, the CDU/CSU and SPD have agreed comprehensive reform plans in the area of housing construction. The aim is to speed…

10.04.2025 | KPMG Law Insights

Energy in the 2025 coalition agreement: what the future government is planning

In the coalition agreement, the CDU/CSU and SPD commit to the German and European climate targets and Germany’s climate neutrality by 2045. To this…

10.04.2025 | KPMG Law Insights

Focus on labor law – this is what the 2025 coalition agreement provides for

The CDU/CSU and SPD agreed on a coalition agreement on April 9, 2025. The overarching title of the paper is “Responsibility for Germany”. On 146…

Contact

Dr. Martin Trayer

Partner

THE SQUAIRE Am Flughafen
60549 Frankfurt am Main

Tel.: 49 69 951195565
mtrayer@kpmg-law.com

© 2024 KPMG Law Rechtsanwaltsgesellschaft mbH, associated with KPMG AG Wirtschaftsprüfungsgesellschaft, a public limited company under German law and a member of the global KPMG organisation of independent member firms affiliated with KPMG International Limited, a Private English Company Limited by Guarantee. All rights reserved. For more details on the structure of KPMG’s global organisation, please visit https://home.kpmg/governance.

 KPMG International does not provide services to clients. No member firm is authorised to bind or contract KPMG International or any other member firm to any third party, just as KPMG International is not authorised to bind or contract any other member firm.

Scroll