EMPLOYMENT LAW: CONTRACTUAL / STATUTORY OVERTIME

If statutory, parties are not free

Swiss law distinguishes between contractual overtime literally based on the contract and statutory overtime based on the law itself. While the first might fall within the parties’ freedom of choice, the latter is heavily regulated and derogations are strictly limited. It is therefore important to determine which type of overtime is performed in order to seek which relevant regime applies.

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Contractual overtime

Contractual overtime is defined as the working hours exceeding the number contractually agreed by the parties but remaining below the maximum weekly number of hours fixed by the Labor Act (art. 321c §1 CO). The rule equally applies to full-time and part-time jobs.

NB: as soon as the overtime exceeds the maximum set by the law, it might be subject to the statutory overtime mandatory rules if the situation falls within the scope of the Labor Act.

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Contractual overtime

CONDITIONS

The employee is bound to perform overtime if the following conditions are met:

• Overtime is required by the circumstances.

Will be taken into account the fact that the circumstances are temporary (ie. due to unusual events such as the temporary absence of a colleague). Poor planning or lack of staff are insufficient. Furthermore, overtime must have been explicitly or tacitly asked for (ie. regarding circumstances) by the employer. If the latter could have noticed that, in order to accomplish a task, the employee had to perform overtime work, it will be concluded that he/she tolerated those extra hours (ATF 129 III 171, January 8th 2003).

• The employee is able to work during that time.

Will be taken into account the employee’s personal and family situation (ex. age, dependent children, distance between the workplace and the employee’s domicile). The law explicitly prohibits such overtime for pregnant women (art. 60 §1 OLT 1).

• Good faith rules allow for such overtime.

If better planning or auxiliary staff recruitment would allow overtime to be avoided, good faith rules forbid the employer to put such a burden on his/her employee. Also, a bit of predictability should be observed when announcing such overtime to an employee. The fact that overtime is graciously compensated (in time or money) can play in favor of its admissibility.

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SANCTIONS

If the conditions are fulfilled and the employee refuses to perform overtime, he could face sanctions, in relation to the violation of his/her duty of diligence and loyalty. Otherwise, the employee can freely refuse to work overtime. If the employer imposes any sanction against him/her, it could be considered as an unjustified “retaliation measure”. Similarly, if the employer dismisses the employee, the termination is very likely to be considered as abusive.

REMUNERATION

If not agreed otherwise by the parties, the employer has to compensate overtime by a 25% wage increment. Alternatively, and under the condition of a mutual agreement between the parties, overtime can be compensated by a vacation time, granted at an appropriate moment.

Parties can agree, by writing, not to compensate overtime in any way or at a lesser level. However, case law tends to limit the possibility of such a complete suppression of compensation.

The statute of limitation of an overtime payment claim is of 5 years (art. 128 ch. 3 CO). In principle, it starts running from the end of each month during which extra-hours are executed.

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Statutory overtime

Statutory overtime is defined as the working hours exceeding the maximum weekly number of working hours set by the Labor act (art. 9 LTr).

The maximum working hours are set at :

• 45 hours per week for workers whose activities essentially are intellectual

(industrial workers, office personnel, technical personnel and other employees, including sales personnel in large-scale retail);

• 50 hours per week for other workers whose activities are mainly manual.

SCOPE OF THE RULES

The following rules only apply to working contracts subject to the Swiss Federal Act on Employment in Trade and Industry (and the corresponding Federal Ordinances). Public and private enterprises equally are concerned.

Nonetheless, there are some exceptions. For instance, the law does not apply to local, cantonal and federal governments, private school’ teachers, the staff of an international organization which agreed on a headquarters agreement with Switzerland or anyone occupying a management position within a company.

CONDITIONS

The employee has the obligation to perform those hours if the following conditions are fulfilled (art. 12 §1 LTr):

• the case is of extreme urgency or due to exceptional workloads;

• overtime doesn’t exceed 2 working hours per day and 140 hours per year for employees working 50 hours a week; 170 hours for employees working 45 hours a week.Nonetheless, there are some exceptions. For instance, the law does not apply to local, cantonal and federal governments, private school’ teachers, the staff of an international organization which agreed on a headquarters agreement with Switzerland or anyone occupying a management position within a company.

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REPORTING

The burden of proof rests with the employee who has to announce the extra-hours performed to the employer without delay. In case the employee doesn’t report them and unconditionally accepts his/her normal salary during the relevant period, the judge might consider his/her right to claim the payment of those extra-hours as willingly waved by the employee him-herself.

However, a detailed recording system of working hours (generally imposed on employers) might help the employee to collect clear evidence of overtime he/she has performed so far. This rule equally applies for contractual and statutory overtime.

REMUNERATION

The employer must compensate overtime by a 25% wage increment of the salary, unless compensated in the form of vacation time, if mutually agreed by the parties.

NB: the wage increment for employees working 50 hours a week only is mandatory from the 61st extra-hour performed during the relevant year. The 60 first hours are subject to the rules governing the contractual overtime.

This rule is mandatory which means that the employee can’t renounce the principle of compensation (in time or money).

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