The Federal Labor Court (BAG) has issued important clarifications on part-time overtime surcharges with ruling 5 AZR 122/25. The case, originating from a retail company in Brandenburg, shows how decisive a precise working hours agreement can be – and that a close look at the applicable collective bargaining agreement is worthwhile. Many part-time employees regularly work more than contractually agreed without knowing that they may be entitled to surcharges for those hours.
The Case: Part-Time in Retail and the Dispute Over 0.02 Weekly Hours
In the specific case, a woman had been employed as a part-time worker at a retail store in Frankfurt (Oder) since March 2000. She sued for payment of overtime surcharges. The dispute centered on a seemingly tiny question: Was her contractual weekly working time 12.02 hours – as she claimed – or 12.00 hours, as the employer maintained? This difference of 0.02 hours was decisive for whether the hours she worked qualified as overtime within the meaning of the collective bargaining agreement.
The Labor Court and the Regional Labor Court had reached different decisions. The Federal Labor Court has now partially overturned the lower court’s ruling and referred the case back for a new hearing. This means the case is not yet finally resolved, but the BAG has set important legal standards. In particular, it emphasized that the exact contractual agreement matters and that the employee bears the burden of proof for the claimed working time.
Part-Time Overtime Surcharges: What the BAG Decided
For part-time employees, overtime is defined as working time that exceeds the contractually agreed working time – not only time exceeding the collectively agreed standard working time of full-time employees. This follows from the Framework Collective Agreement for Retail in Brandenburg, which applied in the specific case. It states: “Overtime is the time that exceeds the regular collectively agreed working time established in § 6 No. 1 and 2 or a working time system corresponding to it.” For part-time employees, the regular working time is their individual contractual number of hours.
The collective agreement provides for a 25 percent surcharge on the hourly wage for overtime. If overtime exceeds 18 hours per month, the surcharge increases to a total of 40 percent. This regulation is typical for many collective agreements in retail but can vary by industry and region. What matters is always what the respectively applicable collective agreement stipulates – and whether it applies at all.
The question of whether part-time overtime surcharges are due therefore depends on two factors: first, the exact contractual working time, and second, the provisions of the collective agreement. In the disputed case, the Framework Collective Agreement for Retail in Brandenburg applied by virtue of both parties’ collective bargaining coverage. It was concluded between the employers’ association and the trade union ver.di and contains detailed provisions on working time, overtime, and surcharges.
Collective Agreement as Key: What the Framework Collective Agreement for Retail in Brandenburg Regulates
The Framework Collective Agreement defines part-time employees in § 3 as those whose contractually agreed working time falls below the regular collectively agreed weekly working time. A special rule applies to them: Anyone who, at the employer’s instigation, works an average of 25 percent or more above their individually agreed working time over a period of 26 calendar weeks between January 1 and September 30 of a calendar year has the right, upon request, to an employment contract reflecting the actual working time. This is an important protective provision – it prevents employers from permanently employing part-time staff beyond their contractual hours without adjusting the contract.
In addition, § 7 regulates overtime: It must be compensated with a 25 percent surcharge, and from the 19th hour per month even with a total of 40 percent. These surcharges apply regardless of whether the overtime occurs regularly or only occasionally – provided it was instigated by the employer. In a dispute, the employee must prove that they actually worked overtime and that this was at the employer’s instigation. Careful documentation is therefore essential.
Practical Tips: How to Secure Your Overtime Pay Claims as a Part-Time Worker
If you work part-time and regularly put in overtime, you should keep the following points in mind:
- Review your employment contract: What weekly working time is exactly agreed? Pay attention to the precise number of hours – even decimal places can be decisive, as this case shows.
- Document your working hours: Record the start and end of your work daily, if possible. This helps you prove how much you actually worked in a dispute. A simple list or an app is sufficient.
- Know your collective agreement: If a collective agreement applies to your employment relationship, inform yourself about the provisions on overtime and surcharges. There are often special clauses for part-time employees – such as the adjustment of the employment contract in case of permanent overtime.
- Talk to your employer: If you regularly work more than contractually agreed, demand a written adjustment of your employment contract or at least a clarification. Avoid a tacit situation developing that later leads to discrepancies.
- Keep deadlines in view: Claims for wages generally become time-barred after three years, but collectively agreed exclusion periods may exist that are significantly shorter. Seek advice promptly.
These measures are no guarantee of a claim, but they give you a strong starting position should a legal dispute arise. Without documentation, it is often difficult to prove the hours actually worked – and without knowledge of the collective agreement, you do not know which surcharges you are entitled to.
What to Do in a Dispute with the Employer? Documentation, Deadlines, and the Path to Litigation
If your employer refuses to pay overtime surcharges, you should first gather all documents: employment contract, collective agreement, working time records, pay slips, and correspondence with the employer. It is then advisable to consult an independent specialist lawyer for labor law. They can assess whether a claim exists and its amount. Filing a lawsuit with the Labor Court is the usual way to enforce claims. The costs can, under certain circumstances, be covered by a litigation funder like RechtStark – meaning: we assess whether we will finance your proceedings and bear the cost risk in case of success.
Note that deadlines apply to labor law claims. Wage claims generally become time-barred after three years, but collectively agreed exclusion periods may be significantly shorter. Seek advice promptly. Similar to other BAG decisions, such as on severance pay in a merger or special protection against dismissal as a preliminary initiator, this ruling shows: labor law questions are often complex and depend on many details. Careful preparation is the key to success.
Conclusion: Your Rights as a Part-Time Employee Regarding Overtime – and How a Litigation Funder Can Help
The BAG ruling 5 AZR 122/25 makes clear that part-time employees do not have to go empty-handed when it comes to overtime. What is decisive, however, is that the contractual working time is precisely recorded and that you document your actual working hours. If you wish to assert claims for part-time overtime surcharges, you should seek legal advice early. A specialist lawyer for labor law can assess your prospects of success and represent you in court. If you are concerned about the costs of proceedings, a litigation funder like RechtStark can assume the financing – allowing you to enforce your rights without personal financial risk. The ruling shows: part-time overtime surcharges are not automatic but depend on the specific contractual design and documentation – yet those who know their rights can successfully enforce them.
Note: This article is for general information purposes only and does not replace individual legal advice. For a free initial assessment of whether litigation funding may be an option for your case, you can contact RechtStark.