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

27.03.2026 | KPMG Law Insights

Special Infrastructure Fund and State Aid Law: Orientation for Funding Practice and Planning

The special fund “Infrastructure and Climate Neutrality” (SVIK) also entails considerable responsibility under state aid law for federal states, municipalities and recipients of funds. Anyone

23.03.2026 | Deal Notifications

KPMG Law, KPMG Law AT as well as KPMG in Germany and KPMG in Austria advise GOLDBECK GmbH on the acquisition of 50 percent of the shares in ZAUNERGROUP Holding GmbH

KPMG Law Rechtsanwaltsgesellschaft mbH (KPMG Law) and Buchberger Ettmayer Rechtsanwälte GmbH (KPMG Law AT) as well as KPMG AG Wirtschaftsprüfungsgesellschaft (KPMG in Germany) and KPMG…

19.03.2026 | KPMG Law Insights

Business Judgement Rule in the use of AI: how governing bodies are liable for decisions

If an AI provides the basis for business decisions, the people responsible are liable, not the machine. This makes the use of artificial intelligence risky…

16.03.2026 | KPMG Law Insights

KPIs in the legal department: How legal becomes strategically effective through control, transparency and data analysis

Today, legal departments are facing a strategic turning point: they must reliably hedge risks, but at the same time enable speed, control costs and make…

13.03.2026 | KPMG Law Insights

Commercial courts: when they are worthwhile for companies – and when they are not

Large commercial disputes are given courts specially tailored to their needs: the Commercial Courts. The German legislator introduced it with the Act to Strengthen the

10.03.2026 | Deal Notifications

KPMG Law advises on the sale of Krasemann Hausverwaltung to Buena

KPMG Law Rechtsanwaltsgesellschaft mbH (KPMG Law) provided legal advice to the KRASEMANN family on the sale of KRASEMANN Immobilien- & Gebäudeservice GmbH (KIGS) and KRASEMANN…

09.03.2026 | KPMG Law Insights

MiCAR and whitepaper obligations – what the transitional regulations mean

The Markets in Crypto-Assets Regulation (MiCAR) has been in force for just over a year. Among other things, MiCAR obliges issuers and providers of crypto…

09.03.2026 | In the media

Guest article in Private Banking Magazine: What tokenized banknotes mean in day-to-day treasury operations

The future of payment transactions will be shaped not by new currencies, but by new processing models. A practical report by Marc Pussar (KPMG Law),…

06.03.2026 | In the media

Guest article in smartlegalmarket: Trends for legal departments in 2026 & 2027

KPMG Law has been surveying international legal departments on their challenges for more than ten years. The “Right to Progress” report is now regarded as…

06.03.2026 | KPMG Law Insights

Carve-out: The biggest risks and how the legal workstream avoids them

A carve-out does not usually fail due to a lack of ideas. And not due to a lack of buyers. Nor do they usually fail…

Contact

Dr. Martin Trayer

Partner

THE SQUAIRE Am Flughafen
60549 Frankfurt am Main

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

© 2026 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