Overtime Work and Pay
According to the Labor Law, overtime
work defined in Article 41 of the Labor Law is defined as work exceeding forty-five hours per week. According to Article 63 of the Labor Law, which defines working hours, weekly working hours are 45 hours as a rule.
However, by agreement of the parties, different working hours can be determined on different days by balancing the working hours instead of dividing them equally among the working days. However, in any case, working hours cannot exceed 11 hours per day. In terms of employee-employer relationship, written approval must be obtained from the employee every year for overtime work and this approval document must be kept in the employee's personnel file.
What is Overtime Pay?
Article 41 of the Labor Law determines the overtime wage amount. According to the relevant article, the wage for overtime is paid by increasing the normal working wage per hour by fifty percent. In calculating the wage, the worker's hourly wage is first calculated and the amount found is increased by fifty percent to find overtime pay. In this calculation, the worker's wage during the period in which overtime work takes place is taken into account, not the last wage. If the worker's wage for previous periods is not known, the unknown wage is determined accordingly by calculating the ratio of the known wage to the minimum wage.
Are Senior Managers Entitled to Overtime Pay?
For workers, especially senior managers, overtime pay constitutes an exception to the general rule. The consistent jurisprudence of the Supreme Court that workers in senior management positions cannot claim overtime pay because they are paid the wages required by their duties and responsibilities, even if they work overtime due to the nature of the work they do .
In determining the qualifications of the senior manager, it is important whether the worker personally determines the working days and hours. If there is a manager or company partner who gives duties and instructions to the worker who is in a senior management position, it is assumed that he received instructions from these people in terms of working hours and overtime. While it is accepted that workers who receive instructions can demand overtime pay, it is accepted that senior managerial workers who determine their own working hours do not have the right to demand overtime pay.
How to Prove Overtime?
In terms of proof of overtime, the proof that overtime has been worked belongs to the employee, and the proof that overtime wages have been paid belongs to the employer. The worker can prove his claim that he has worked overtime with all kinds of evidence (witnesses, work entry and exit records, payroll records, e-mails and other correspondence, etc.). According to the Supreme Court, if there is an overtime column on the wage slip, the employee who signs the payroll without making a reservation cannot request overtime pay later. Likewise, in payments made to the worker through the bank as overtime pay, the worker who does not make a reservation cannot pay overtime pay later.
On the other hand, if the overtime column is left blank on the wage slip, the worker is entitled to overtime pay if he proves that he has worked overtime. It should be noted that, if there is no accrual on the payroll or the overtime field is shown as 0, the worker can prove that he has worked overtime with all kinds of evidence, including witnesses. However, if the witnesses heard have a lawsuit with the employer or there is hostility between them and the defendant employer, their testimonies are not fully relied upon. Witnesses must be people who worked in the same period as the plaintiff and know the working days and hours.
When can overtime pay be claimed?
Overtime pay can be requested while the employment relationship continues or after it ends. Therefore, it is possible for workers to file a lawsuit demanding overtime pay even after the termination of the employment relationship. The requested overtime pay is limited to a 5-year statute of limitations. This period begins to run on the date on which the right to receive overtime pay arises, not on the termination of the employment relationship. It can be requested within the 5-year limitation period following its expiration.
Can Overtime Pay Be Included in the Monthly Wage?
Rules in employment contracts that overtime pay is included in the monthly wage may be given limited value. According to the Supreme Court case law, the provisions in question are accepted to be valid, limited to 270 hours per year. If this period is exceeded, the exceeded time will be considered as overtime and will need to be paid.
Equitable Discount for Overtime Work Proven According to Witness Statements
The Supreme Court envisages an equitable reduction for overtime work proven according to witness statements. Accordingly, making the worker work overtime every day for a long time is against the normal flow of life, and it is unthinkable for the worker to work overtime for a long time without taking any leave or getting sick. In practice, courts generally calculate based on a 30% equity reduction. However, if overtime work is based on written documents and workplace records rather than witness statements, equity reduction is not applied.
For More Detailed Information:
| Hunting. I. Can Çayırpare | email: can.cayirpare@cvghukuk.com | Tel: 0532 474 30 35 |
| Hunting. B. Güven Cem | email: guven.cem@cvghukuk.com | Tel: 0533 740 86 28 |
| Hunting. Volkan Önkibar | email: volkan.onkibar@cvghukuk.com | Tel: 0535 662 61 06 |
