Overtime Pay in Germany: When Überstunden Must Actually Be Paid Out

Someone who has just worked another late night wants a straight answer to one question: does the employer have to pay for that. German law does not give a single yes or no. It caps how many hours can be worked at all, but whether the hours over the ordinary schedule get paid out in money, banked as time off, or already covered by salary depends on the employment contract, a Betriebsvereinbarung (works agreement) or a Tarifvertrag (collective agreement).

That split surprises a lot of people, including many arriving from countries where overtime pay is a blanket statutory right. This page works through what actually decides the answer in a given case, what a payslip needs to show, and where the rule quietly runs out on its own, through a deadline rather than a decision.

Information last verified on 19 July 2026. This page provides general legal information and does not constitute legal advice in an individual case.

What the law actually limits: hours, not pay

The Arbeitszeitgesetz (ArbZG) is a health and safety statute. It sets ceilings on how long someone can be made to work, not a floor under what extra hours are worth in money.

Under § 3 ArbZG, the working day may not exceed eight hours. It can be stretched to ten hours on individual days, but only if the average across six calendar months or 24 weeks comes back down to eight hours a day. A run of long days has to be balanced out with shorter ones inside that window, not carried forward indefinitely.

A worked example makes the averaging concrete. Someone who works ten hour days for four straight weeks, instead of the standard eight, has put in roughly 40 extra hours across that stretch. Somewhere else in the same six month or 24 week reference period, hours have to come in correspondingly below eight a day so the average settles back at eight. If it never does, the employer is looking at a working time violation regardless of what the pay slip says.

§ 7 ArbZG lets a Tarifvertrag or a Betriebsvereinbarung based on one go further still, permitting hours beyond the ten hour ceiling where on call or standby time is a regular and substantial part of the job, common in healthcare and emergency services. Even then, § 7 Abs. 8 ArbZG holds the line at an average of 48 hours a week over 12 months. No collective agreement can push past that ceiling.

So is overtime paid or not

This is the part the ArbZG has nothing to say about. Once hours are lawfully worked, whether they are compensated with extra pay, converted into paid time off (Freizeitausgleich), or already folded into the agreed salary is a matter of contract law, not working time law.

Three sources typically settle it, in this order of how often they apply: the individual employment contract, a Betriebsvereinbarung negotiated with the works council, or a Tarifvertrag covering the industry or company. Where one of these sets a rule, that rule normally governs. Where none of them says anything at all, the analysis falls back to § 612 BGB.

§ 612 BGB provides that pay is treated as tacitly agreed wherever a service is, given the circumstances, only to be expected in exchange for pay, and that where an amount was never fixed, the customary rate (the ubliche Vergütung) for that kind of work applies. In plain terms: if extra hours were worked in a role and an industry where unpaid extra work would not ordinarily be expected, and the contract never addressed it, a claim for the customary going rate can arise even without an explicit overtime clause.

The blanket clause almost everyone has seen on a contract

A huge number of German employment contracts carry a version of the line: mit dem Gehalt sind sämtliche Überstunden abgegolten, meaning the salary covers all overtime, full stop. Readers researching this topic are usually trying to find out whether that line actually works.

Often it does not. The Bundesarbeitsgericht held as far back as 1 September 2010 (5 AZR 517/09) that a clause covering required overtime with the monthly salary fails the Transparenzgebot in § 307 Abs. 1 Satz 2 BGB unless the contract itself makes clear how much extra work that covers. An open ended promise that swallows an unlimited, unstated number of hours does not give the employee a fair chance to know, at the point of signing, the real scope of what they are agreeing to work for that pay.

What tends to survive is narrower and more specific: a clause naming a defined number of hours a month covered by the salary, for example stating plainly that up to ten hours a month are included, with anything beyond that paid or banked separately. A clause that names no limit at all is the one that keeps failing.

When a blanket clause is struck down as invalid, it does not usually take the whole contract with it. § 306 BGB provides that the rest of the contract stays in force, and the gap left by the invalid clause is filled by the ordinary statutory rules, which is exactly the § 612 BGB customary rate route described above. Practically, an invalid abgeltung clause tends to convert unpaid overtime back into a paid claim rather than closing the door on it.

Proving it happened: the burden nobody expects

Even where overtime should be paid in principle, actually collecting on the claim is where most cases are won or lost, and the deciding factor is rarely whether the hours were real.

German civil procedure puts the burden of presentation and proof on the employee bringing the claim, and the Bundesarbeitsgericht has been precise about what that requires. The employee has to show, concretely, which days they worked beyond the agreed hours and from what time to what time. That much satisfies the first half of the burden.

The second half is the one that trips people up: the employee also has to show that the employer ordered the overtime, approved it in advance, tolerated it knowingly, or at least accepted it afterward with knowledge of the extra hours. Simply having logged the hours, on a timesheet or a swipe card, does not by itself prove the employer wanted or accepted that work.

A reader might reasonably assume that the European Court of Justice's 2019 ruling in CCOO against Deutsche Bank SAE (C-55/18), which required member states to make employers record working time, would shift that burden in the employee's favor. It has not. The Bundesarbeitsgericht ruled on 4 May 2022 (5 AZR 359/21) that the CCOO decision addresses health and safety protections under the Working Time Directive and does not extend to compensation disputes, so the traditional burden of proof for overtime pay stands unchanged. A time record can be useful evidence of hours worked; it is not, by itself, proof that the employer ordered or accepted them.

The time recording obligation, and what is not yet law

Employers in Germany already have a legal duty to record working time, but it does not come from where most people expect. The Bundesarbeitsgericht held on 13 September 2022 (1 ABR 22/21) that a system for recording the working time actually performed by employees already follows from § 3 Abs. 2 Nr. 1 ArbSchG, the general occupational safety statute requiring employers to organise the workplace and provide the resources needed to protect worker health. That decision built directly on the CCOO ruling above and applies now, in paper form, a spreadsheet, or an electronic system.

What has not happened, as of this page's verification date, is a dedicated recording duty written into the Arbeitszeitgesetz itself with its own detailed rules on form and deadlines. A ministry draft bill (Referentenentwurf) to add exactly that, alongside a separate proposal letting collective agreements measure maximum hours weekly instead of daily, was published in June 2026 and remained at the draft stage, still working through inter ministerial coordination ahead of any cabinet resolution, a Bundestag vote and a Bundesrat vote. None of that had happened by the date this page was checked. Treat any claim that a specific electronic recording format is now mandatory under the ArbZG itself as premature until that bill actually clears the Bundestag and Bundesrat and is published in the Bundesgesetzblatt.

Rest periods and breaks limit how much overtime is even possible

Two further ArbZG rules cap overtime indirectly, by controlling when someone has to stop working regardless of what is owed for the hours already worked.

§ 5 ArbZG requires an uninterrupted rest period of at least eleven hours after the end of the working day, before the next one can begin. A small number of sectors, including hospitals, hospitality, transport, broadcasting and agriculture, can shorten that to ten hours, but only if the missing hour is made up with a longer rest period of at least twelve hours within the same month or four week period.

§ 4 ArbZG requires a break of at least 30 minutes for a working day of more than six and up to nine hours, and at least 45 minutes for a day longer than nine hours, taken in segments of no less than 15 minutes each. Nobody may work more than six hours straight without a break starting. Both rules exist independently of whether the overtime worked that day ever gets paid.

The works council has a say before overtime is even ordered

Where a company has a Betriebsrat (works council), ordering overtime is not solely the employer's call. § 87 Abs. 1 Nr. 3 BetrVG gives the works council a co-determination right over the temporary shortening or lengthening of the working hours normally worked in the business, which covers exactly the situation of an employer wanting staff to put in extra hours beyond the usual schedule.

In practice, that means an employer in a business with a works council generally needs the works council's agreement, or a ruling from the internal Einigungsstelle if agreement cannot be reached, before ordering overtime across a workforce or department, separate from and in addition to whatever the individual contract says about pay for those hours.

The deadline that quietly kills most claims: Ausschlussfristen

Even a genuine, provable, correctly calculated overtime claim can die on a technicality that has nothing to do with the merits: a missed Ausschlussfrist, a contractual or collective bargaining cutoff period after which the claim is simply gone.

Many German employment contracts and Tarifverträge set a first stage cutoff, commonly around three months from the date the pay was due, by which a claim has to be asserted in writing or it is forfeited entirely. Some set a second stage requiring the claim to then be filed in court within a further period if the employer does not pay. These periods run far faster than people expect, and unpaid overtime from months or years earlier is routinely lost this way, not because it was invalid but because nobody raised it in writing in time.

There is one hard limit on how far an Ausschlussfrist can reach. § 3 MiLoG makes the statutory minimum wage claim itself immune to forfeiture: any agreement that would let the minimum wage entitlement fall below its statutory floor, or restrict or exclude asserting it, is void to that extent, and only a court approved settlement can waive it. Where unpaid overtime has pushed someone's effective hourly rate below the minimum wage for a given period, that specific shortfall survives a cutoff clause that would otherwise have wiped out an ordinary overtime claim.

Where overtime meets the minimum wage floor

A blanket overtime clause, even a properly drafted, quantified one, cannot lawfully push someone's real hourly pay below the statutory minimum wage, set at 13.90 euro an hour for 2026.

A concrete example shows how this bites. Take a monthly salary of 2,600 euro gross for a contractual 173 hours a month (a standard 40 hour week). At those hours, the effective rate is about 15.03 euro an hour, comfortably above the floor. Now add 27 hours of unpaid overtime that the contract's abgeltung clause claims to already cover, bringing the month's real hours to 200. Spread over the same 2,600 euro, the effective rate drops to 13.00 euro an hour, below the 13.90 euro floor by 0.90 euro for every one of those 200 hours, a shortfall of about 180 euro for that month alone.

That shortfall is a minimum wage claim, not merely an overtime claim, so it survives an Ausschlussfrist that would have extinguished an ordinary contractual claim for the same hours. It is also a useful sanity check on any blanket clause: if the stated cap on unpaid hours could ever push real pay under the minimum wage in a normal month, the clause has a problem that goes beyond the Transparenzgebot issue described earlier.

Minijobbers and part time overtime

Working extra hours creates a sharper problem for a Minijobber than for a full time employee, because a Minijob is defined by an earnings ceiling rather than by a fixed schedule. Under the 2026 rules, that ceiling is 603 euro a month.

If a Minijobber picks up extra shifts and their earnings for the month go over that ceiling, the arrangement can lose its Minijob status for that period, with the pay then treated as ordinary, fully insured employment instead, unless the overrun is occasional, unforeseeable, limited to at most two months in a rolling twelve month window, and does not exceed the ceiling amount itself in either of those months. Someone regularly working extra hours that push past 603 euro is not in that narrow exception and should expect the job to be reclassified rather than to simply collect unpaid overtime pay quietly on the side. See Minijob in Germany for the full ceiling mechanics and the occasional overrun rule in detail.

What overtime does not change

Overtime worked, whether paid out, banked, or absorbed by a valid abgeltung clause, has no effect on the separate statutory holiday entitlement, which follows its own rules regardless of how many extra hours were logged that year. Time off given in exchange for overtime (Freizeitausgleich) is also a distinct arrangement from paid annual leave, and the two should not be confused when checking a payslip or a leave balance. See vacation entitlement in Germany for how statutory leave is actually calculated.

Practical steps if unpaid overtime is in dispute

Anyone trying to work out whether unpaid hours are owed should start with the contract, the applicable Betriebsvereinbarung, and any Tarifvertrag that covers the role, since one of those usually settles the pay question before it ever needs a court. Where an abgeltung clause is open ended rather than quantified, it is worth treating it as potentially unenforceable rather than as the final word.

A written, dated record of the hours actually worked each day, kept contemporaneously rather than reconstructed later, is the starting point for satisfying the first half of the burden of proof described above. Evidence that a manager assigned, approved, or knowingly accepted the extra hours, an email, a rota, a message thread, matters just as much as the hours themselves. Because Ausschlussfristen move fast, often around three months, a written demand to the employer should go out as soon as a dispute looks likely, rather than after the fact. See German law explained for how this fits into the wider structure of German employment protections.