Overtime pay is an employment claim that arises where an employee works beyond the statutory weekly limit of 45 hours and that may be pursued through the courts if it is not paid. Labour Act No. 4857 requires that an employee who works overtime be paid at a premium of at least 50 per cent on the hourly wage. Where the employer fails to meet this obligation, the employee may claim the sum due first through mediation and then by bringing an action.
This is one of the most heavily litigated heads of claim in employment proceedings. In practice, payrolls frequently contain no overtime accrual and no additional payment is made even though actual working time exceeds 45 hours per week. Against that background, how the claim is to be calculated, by what evidence it is to be established and within what period it must be asserted become decisive questions.
Below we address the statutory basis of overtime pay, its types, the method of calculation, the rules of proof and the course of proceedings, in the light of the case law of the Court of Cassation.
The Concept of the Overtime Pay Claim
Overtime pay is an employment claim arising where the employee works, on the employer’s orders and instructions, beyond the weekly period prescribed by statute. Weekly working time is fixed at 45 hours in Act No. 4857, and unless otherwise agreed that period is to be distributed equally among the days worked. As a consequence of that scheme, the employee becomes entitled to overtime pay for every hour worked above 45 hours per week.
The rate of pay is likewise fixed by statute:
Labour Act No. 4857, Art. 41(2)
"The wage payable for each hour of overtime shall be paid by increasing the hourly portion of the normal wage by fifty per cent."
Types of Overtime
Ordinary overtime denotes work performed on grounds such as the general interest of the country, the nature of the work or an increase in production. In this category the employee’s consent is as a rule required; consent may be obtained at the outset of the employment relationship or subsequently. The consent given by the employee is limited to 270 hours per year, and where that limit is exceeded the employer’s obligation to pay does not fall away, even if consent was given.
Compulsory overtime is work performed during a breakdown, where the risk of a breakdown emerges, in urgent work relating to machinery and equipment that cannot tolerate delay, or upon the occurrence of compelling reasons. By its nature, the employee’s consent is not required here; on the other hand, the work performed must not exceed what is necessary for the workplace to continue its ordinary operations.
Extraordinary overtime arises during a period of mobilisation, in workplaces required for the defence of the country. Where it is considered necessary, the President may permit daily working time to be increased to the extent that raises it to the employee’s maximum working capacity.
Work in Which Overtime Is Restricted
The Regulation on Overtime Work and Extended Hours Work under the Labour Act prohibits overtime in a number of lines of work. Accordingly, overtime may not be required:
- in work carried out during the period deemed to be night time,
- in work in which, by reason of health rules, daily working time must be 7.5 hours or less,
- in work performed underground or underwater, such as in mines, cable laying, sewerage and tunnel construction,
- in the case of those working in underground mining operations, save in compulsory and extraordinary circumstances,
in any of those situations.
Employees Who May Not Be Required to Work Overtime
The Regulation also prohibits overtime in respect of certain groups of employees. Accordingly:
- those employed under a part-time employment contract,
- employees who are pregnant, who have recently given birth and who are breastfeeding,
- employees shown by medical report not to be fit for overtime,
- those who have not yet completed 18 years of age,
are among the employees who may not be required to work overtime. Where an employee is compelled to work overtime notwithstanding the prohibition, a right of termination for just cause may arise. For further detail on this subject, our note entitled In What Circumstances May an Employee Terminate the Contract for Just Cause may be consulted.
Overtime Distinguished from Extended Hours Work
Two concepts are involved which are often confused but which have different consequences. Where weekly working time has been agreed by contract at below 45 hours, work performed beyond that period and up to 45 hours counts as extended hours work and is remunerated at a premium of 25 per cent.
By contrast, work taking the weekly total above 45 hours within the statutory conditions is in the nature of overtime, and the employee becomes entitled to a premium of 50 per cent for that work.
Conditions Required for Overtime
For overtime to be required, a series of conditions laid down in the legislation must be satisfied together.
- The 45-hour weekly threshold. The Labour Act fixes ordinary weekly working time at a maximum of 45 hours. Where that threshold is exceeded, the work performed counts as overtime and premium pay must be made.
- The daily limit. The time that may be worked in a single day may as a rule not exceed 11 hours. Even where the working arrangement is structured on an averaging basis, the employee’s actual work in a single day may not be taken above that limit.
- The employee’s written consent. The requirement of overtime depends on the employee’s written consent. Consent may be obtained at the outset of the employment relationship or subsequently; unless the employee agrees, they may as a rule not be compelled to work overtime.
- The annual ceiling of 270 hours. The overtime that may be required of an employee in a year is 270 hours at most. Exceeding that ceiling does not extinguish the right to pay; the employee may still claim remuneration for all the overtime performed.
Who May Claim Overtime Pay?
This claim is as a rule available to those working in the capacity of an employee. Whether the claim may be asserted is nevertheless assessed separately in each file.
Those with employee status. Employees engaged within the scope of the Labour Act who work more than 45 hours per week become entitled to overtime pay. Where no payment is made, this claim may be pursued.
Senior managers. Senior managers who determine their own working arrangements and are vested with authority to take decisions on the employer’s behalf may as a rule not claim overtime. However, where express instructions are given by the employer or long working hours are in fact imposed, a claim may be possible according to the particular features of the case.
Cases where overtime is deemed included in the wage. The employment contract may provide that remuneration for overtime is included in the wage. In that event, 270 hours of overtime per year are deemed to be covered by the wage; the employee may make a separate claim in respect of the part exceeding the ceiling.
Employees who receive no payment. Employees who have in fact worked overtime but whose payroll does not show this item, or who have been underpaid, may claim what is due to them. At this point the question of proof comes to the fore; evidence such as the payroll, timesheet records and witness testimony is assessed.
How Is Overtime Pay Calculated?
The calculation is built on the hourly equivalent of the employee’s gross wage. The hourly wage is established first, and the premium rate is then applied according to the type of work.
Establishing the hourly wage
The hourly wage is obtained by dividing the monthly gross wage by 225.
Hourly wage = Monthly gross wage ÷ 225
The premium rate according to the type of work
If weekly working time has been set by contract at below 45 hours, work falling between the agreed period and 45 hours counts as extended hours work and is paid at the equivalent of the hourly wage increased by 25 per cent.
Hourly rate for extended hours work = Hourly wage × 1.25
Work exceeding 45 hours per week, by contrast, is characterised as overtime, and the hourly wage increased by 50 per cent is taken as the basis.
Hourly rate for overtime = Hourly wage × 1.5
Worked example
Monthly gross wage: TRY 30,000 Hourly wage: 30,000 ÷ 225 = TRY 133.33
For an employee working 10 hours of overtime per week:
Hourly rate for overtime: 133.33 × 1.5 = TRY 200 Remuneration for 10 hours: 200 × 10 = TRY 2,000
That employee therefore acquires an overtime claim of TRY 2,000 as remuneration for a single weekly period.
How Is Overtime Proved?
What is decisive in claims of this kind is establishing that overtime was worked and for how long. Proof is possible by any means of evidence. The instruments that come to the fore in practice are as follows.
Payrolls. Payrolls bearing the employee’s signature and containing an overtime accrual are as a rule treated as conclusive evidence. Where the payroll contains no such accrual, the employee may establish by other evidence that they in fact worked longer hours.
Timesheets and entry and exit records. Card-reader records, turnstile data, electronic access systems and timesheets kept at the workplace play an important part in determining overtime. Since these records are within the employer’s control, a failure to produce them may lead to an assessment in the employee’s favour.
Witness testimony. Statements by persons who worked alongside the employee or who know the working arrangements may be used as a means of proof. In files where there is no written record, the weight of witness evidence increases.
Correspondence and digital data. Electronic mail traffic, messaging, task instructions and digital records reflecting working hours may also be used in proof.
Employer records. Shift lists, duty rosters, camera footage and documents setting out the organisation of the work are further items of evidence capable of showing overtime.
Who Bears the Burden of Proof?
An employee who alleges that they worked overtime is as a rule required to prove that allegation. The employer, on the other hand, is obliged to keep records of working time and to produce them on request. In practice, the burden of proof therefore appears to be shared between the two parties.
The effect of a signed payroll. A payroll signed by the employee and containing no reservation establishes that the overtime payment recorded in it was made. In such a case the employee must prove by written evidence that they worked longer hours than those shown on the payroll. Where a reservation has been entered on the payroll, the employee may prove their allegation by any means of evidence.
The approach of the Court of Cassation. The Court of Cassation accepts that overtime claims are to be determined by assessing witness testimony, workplace records and the circumstances of the particular case together. Where the employer has not kept records or does not produce them, the doubts that arise are as a rule resolved in the employee’s favour.
Limitation Period for Overtime Pay
Overtime pay is among the employment claims and is subject to the statute of limitations. The claim must therefore be asserted within a certain period.
The five-year period. The statute of limitations for overtime pay is 5 years. A retrospective claim is limited to the last five-year period at most. Where the period expires, the claim becomes time-barred and may be dismissed upon the employer raising that defence.
When the period begins. The limitation period begins to run on the date on which the overtime pay ought to have been paid. Since this is an item payable together with the monthly wage, it is assessed separately for each month. The employee may accordingly claim the sums falling within the five-year period counted back from the date of the action.
Recourse to mandatory mediation is among the situations that suspend the limitation period; once the process comes to an end, the remaining period continues to run. For the subject as a whole, our note entitled Limitation Periods in Employment Claims may be consulted.
The Course of an Overtime Claim Action
The route to be followed in recovering the claim is set out within the framework of the Labour Act and the Labour Courts Act. This item cannot be made the subject of an action directly; certain procedural steps must be completed beforehand.
Mediation as a Procedural Requirement
Since an overtime claim is in the nature of a dispute between employee and employer, it is subject to mandatory mediation as a procedural requirement. Recourse to a mediator before an action is brought is compulsory. If agreement is reached in the process, the document drawn up is deemed to have the character of a judgment and may be enforced.
If agreement cannot be reached, a final minute is drawn up and the employee may bring an action on the basis of that minute.
Courts with Subject-Matter and Territorial Jurisdiction
In terms of subject-matter jurisdiction, the competent forum is the Labour Court. In places where no labour court has been established, the action is heard by the Civil Court of First Instance sitting as a labour court.
In terms of territorial jurisdiction, the court of the respondent employer’s domicile or the court of the place where the work was performed has jurisdiction. The rules of jurisdiction are applied in the employee’s favour.
Court-Appointed Expert Examination
Since determining working time and the amount of the claim mostly requires a technical calculation, the court orders a court-appointed expert examination. The expert calculates the duration of the overtime and the amount of the claim by assessing the payroll, the timesheet records, the witness testimony and the other evidence on the file.
The court reviews the report in the light of the parties’ objections and gives judgment in accordance with it.
Frequently Asked Questions
May overtime be deemed included in the wage?
The employment contract may provide that overtime is included in the wage. That provision is, however, valid only in respect of 270 hours of overtime per year. For work above that limit the employee may claim separate remuneration.
At what rate is overtime pay calculated?
The calculation is made on the basis of the employee’s hourly wage increased by 50 per cent. The hourly wage is found by dividing the monthly gross wage by 225.
Can overtime be proved by witnesses where there are no written records?
Yes. Even where there are no timesheets or other written records, overtime may be proved by the statements of witnesses working at the workplace. In the practice of the Court of Cassation, witness testimony is accepted as an important item of evidence.
May an employee who resigns claim this sum?
Yes. The fact that the contract came to an end by resignation is no obstacle to claiming unpaid overtime pay.
What is the limitation period?
The limitation period for an overtime claim is 5 years. The employee may claim at most five years of arrears counted back from the date of the action.
May an employer require unlimited overtime?
Provided written consent has been obtained, the employer may require overtime. However, the annual total may not exceed 270 hours and daily working time may not be taken above 11 hours.
What if a signed payroll shows overtime?
Where a signed payroll bearing no reservation shows an overtime payment, the employee must as a rule establish by written evidence that they worked more than the payroll records. Otherwise it may not be possible to make a further claim.
What course should be followed if no payment is made?
An employee whose overtime pay is not paid must first have recourse to mandatory mediation and, if agreement cannot be reached, bring an action for the sum due.
May a senior manager claim overtime?
Senior managers who determine their own working hours and hold authority to take decisions on the employer’s behalf may as a rule not assert this claim. Where overtime has been worked on the employer’s express instructions, by contrast, a claim may arise.
Independent Legal Assessment
In overtime disputes the factor determining the outcome is often not the legal characterisation but the record-keeping regime. An employer’s failure to keep working time in a traceable form lays the ground for doubts to be resolved in the employee’s favour; an employee’s inability to give concrete form to the working arrangement may, in turn, result in even a well-founded claim being only partly upheld. The documents created during the continuation of the employment relationship therefore effectively set the framework of any proceedings subsequently conducted.
Records of overtime deemed to be included in the wage likewise call for particular attention. A provision to that effect in the contract does not cover work beyond the 270-hour ceiling, and the period to be taken as the basis in calculating the ceiling must also be expressly regulated.
In a given file it is advisable to consider the following points in advance:
- Defining the weekly working arrangement clearly in the contract and in internal directives
- Obtaining written consent to overtime and monitoring the annual ceiling of 270 hours
- Showing the overtime accrual as a separate item on payrolls and monitoring the practice as to reservations
- Archiving timesheet, turnstile and digital entry and exit data together with their retention periods
- Timing the application for mediation with the five-year limitation period in mind
- Checking that the daily limit of 11 hours is not exceeded in workplaces operating an averaging scheme
Independent Legal provides advisory and litigation services in disputes concerning overtime and other employment claims, from establishing the record-keeping regime through to conducting the mediation and litigation process.