What is overtime pay?
Overtime work is regulated under the Labor Law in our country. Accordingly, a worker can work up to 45 hours per week and 11 hours per day. Any working hours exceeding these limits fall under overtime and are subject to higher compensation than the worker’s regular working hours.
How is overtime pay calculated?
Regulation on Overtime and Extended Working Hours Related to the Labor Law
Article 4 — The wage for each hour of overtime work shall be paid by increasing the hourly rate of the normal wage by fifty percent. In cases of extended working hours, the wage for each extra hour shall be paid by increasing the hourly rate of the normal wage by twenty-five percent.
For work paid on a piece rate or based on the amount of work completed, if it is not difficult to determine the value of the work produced during overtime hours, the overtime or extended working hours wage shall be calculated based on the wage corresponding to each extra hour worked.
If determining the piece rate or amount of work done is difficult, the total value of the work produced within the payment period shall be divided by the total normal and overtime hours worked during that period. This calculation provides the piece rate or amount of work per hour, and the overtime wage shall be fifty percent higher than this amount, while the extended working hours wage shall be twenty-five percent higher.
The relevant regulation specifies how much compensation is to be paid based on overtime hours. Accordingly, for each hour of overtime, the wage shall be calculated by increasing the hourly rate by 50% for work exceeding 45 hours per week. In jobs paid on a piece-rate basis, if the amount of work done per piece can be calculated, the resulting amount is increased by 50%; if it cannot be calculated, the total work done during the period is divided by the total normal and overtime hours worked to determine the hourly rate, which is then increased by 50%.
An employee’s normal working wage is calculated based on their gross salary. For employees who have left their jobs, the last gross salary received shall be used as the basis for calculation.
Which workgroups are prohibited from working overtime?
Employees under the age of 18, those who cannot work overtime due to health issues, pregnant employees, new mothers, breastfeeding employees, and those working under part-time employment contracts are legally prohibited from working overtime. Managers within the company or authorized individuals acting on behalf of the manager cannot receive overtime pay, even if they work overtime according to labor law.
What are the conditions for overtime to be required?
According to Article 9 of the Regulation on Overtime and Working with Extra Hours related to the Labor Law:
“To require overtime or working with extra hours, the written consent of the employee must be obtained. This consent is not required for overtime or extra hour work due to mandatory reasons or in emergency situations. If the employer needs overtime work, this consent is obtained either during the conclusion of the employment contract or when the need arises, and it is kept in the employee’s personnel file. An employee who does not want to work overtime can withdraw their consent by notifying the employer in writing 30 days in advance.”
As a general rule, written consent from the employee is required to make them work overtime. In emergency situations, this consent is not mandatory. An employee who does not wish to work overtime can refuse it with 30 days’ prior notice. Refusing overtime does not constitute a valid reason for termination, and if the employer terminates the employment contract based on this reason, they will face the consequences of unfair dismissal provisions.
What is the statute of limitations for overtime claims?
The statute of limitations for claims related to wages, overtime pay, national holiday pay, weekly holiday pay, and additional payments such as bonuses, premiums, etc., which are directly related to the performance of the work, is five years.
It is possible to request claims for up to five years prior to the date of filing the lawsuit.
Mandatory Mediation Requirement Before Filing an Overtime Pay Lawsuit
According to Article 3, Paragraph 1 of the Labor Courts Law No. 7036:
“In cases based on the law, individual or collective labor contracts related to employee or employer claims and compensation, and cases filed for reinstatement, it is a requirement to have applied to a mediator before filing a lawsuit.”
In labor claims cases, our law stipulates that applying to a mediator is a procedural requirement before filing the lawsuit. Lawsuits filed without consulting a mediator will be dismissed for procedural reasons.
Which court has jurisdiction in overtime pay lawsuits?
Since the case concerns worker claims, the courts with jurisdiction are those located in the place where the work was performed and the court in the defendant employer’s residence address. The competent court is the labor court, as the case arises from labor claims. In places where there is no labor court, the civil court of first instance will hear the case in the capacity of a labor court.
In its decision numbered 2016/33602, 2020/17767 of the 9th Civil Chamber of the Court of Cassation, it clarified this situation as follows:
“According to the principles adopted by our Chamber, in the presence of signed payrolls containing overtime pay accruals, the period to which these payrolls belong should be excluded in the calculation of overtime pay. The only exception to this is the existence of written evidence. In other words, the worker can only prove the claim of working more hours than stated in the signed payroll with written evidence. Otherwise, the signed payroll containing the overtime pay accrual cannot be disproven with witness statements.
The worker can prove the overtime work with any kind of evidence. However, as explicitly stated in the established case law, if the overtime cannot be proven with written documents, witness evidence can be used. Nevertheless, statements of witnesses who are unaware of the working order of the workplace, or who could not possibly know it, cannot be considered reliable.”
In overtime pay lawsuits, who bears the burden of proof?
In labor courts, the burden of proof depends on who benefits from the claim. The party benefiting from the claim is responsible for proving it. While the employee bears the burden of proving that the work was performed, the employer bears the burden of proving that the overtime pay was paid.
How is overtime pay calculated?
Overtime pay is calculated mathematically using the formula ‘(Gross salary / 225) x 1.5’. This calculation gives the hourly overtime rate. The result is then multiplied by the number of overtime hours worked to reach the final amount.
For example, the overtime pay for a worker earning minimum wage who works 10 overtime hours is calculated as follows:
20002/225 = 88,89 88,89 x 1,5=133,34 10×1344,34= 13443,4 TL
It will be calculated as.
Relevant Court of Cassation rulings
Court of Cassation 9th Civil Chamber, Decision No. 2014/31153 E., 2016/4095 K.
“Case Law Text”
COURT: LABOR COURT
“…
2- As for the plaintiff’s claim for overtime pay, the overtime pay was rejected on the grounds that it was accrued in the salary slips. However, the salary slips submitted by the defendant do not contain the employee’s signature and there are months where overtime accrual is absent. Therefore, it was necessary to determine the months where there was no overtime accrual and calculate the overtime pay limited by the working hours of the plaintiff’s witness at the workplace. The rejection of this claim with insufficient investigation was erroneous and required a reversal.
(Court of Cassation 7th Civil Chamber, Decision dated 14.04.2014, 2014/803, 2014/7983)
If there is a provision in the contract signed between the employee and the employer stating that the overtime pay is included in the employee’s monthly salary, it seems impossible for the employee to claim overtime pay. However, if the employee’s work exceeds 270 hours annually, the employee must be paid overtime for the hours exceeding 270 hours. A decision of the Court of Cassation states, “The provision regarding the inclusion of overtime pay in the monthly salary in employment contracts should be interpreted with limited value. Our Chamber accepts that such provisions are valid only for 270 hours.”
Republic of Turkey
Court of Cassation
- Civil Chamber
E. 2021/3306
K. 2021/7614
T. 5.4.2021
- OVERTIME PAY CLAIM (Initially, the Defendant Employer Must Present the Employment Contract and Determine Whether There Is a Provision in the Contract Regarding the Inclusion of 270 Hours in the Wage/If There Is a Provision in the Contract Stating That the 270 Hours Are Included in the Wage, the Overtime Pay for the Employee’s Annual 270 Hours of Work Should Be Considered as Included in the Wage, and Overtime Pay Should Be Accepted Only for the Hours Exceeding 270 Hours)
- CALCULATION OF OVERTIME (The Accepted Working Hours Are Between 09:00-18:00 on Weekdays and 09:00-14:00 on Saturdays/According to These Hours, After Deducting 1 Hour Break Time for Weekday Work, 40 Hours of Work Are Done; Saturday Work Is 4.5 Hours After Deducting 30 Minutes of Break, Leading to a Total of 44.5 Hours Worked Per Week – In the Expert Report Used for Judgment, This Duration Was Evaluated as 45 Hours, and the Calculation Was Made Based on the 11 Hours of Overtime Exceeding This Duration; However, According to the Accepted Hours, Overtime Should Have Been 10.5 Hours Instead of 11 Hours, and This is a Mistake.)
- EXCEEDING THE CLAIM (Although the Non-Employment of the Worker Is Considered as a Termination, and According to the Employer’s Termination, the Calculations for Severance and Notice Pay Should Be Based on the Termination Date of the Non-Employment with Consideration of the Wage and Severance Pay Cap for That Date, the Plaintiff’s Claim Was Based on 11.03.2016, While the Expert Report Used for the Judgment Took 19.01.2017 as the Date and Made the Calculation Based on That Date, Exceeding the Claim, and Therefore, the Judgment Should Be Overturned.)
4857/m.41
6100/m.26
SUMMARY: The case is related to labor claims.
1- The issue of whether the plaintiff is entitled to overtime pay is a point of dispute between the parties.
Firstly, the employer must present the employment contract, and it must be determined whether there is a provision in the contract regarding whether the 270 hours are included in the salary.
If there is a provision in the contract stating that the 270 hours are included in the salary, the overtime pay for the plaintiff’s 270 hours of work per year should be considered as included in the salary, and overtime pay should be accepted only for the portion exceeding 270 hours.
2- There is a dispute between the parties regarding the calculation of overtime pay.
The accepted working hours are from 09:00 to 18:00 during weekdays and from 09:00 to 14:00 on Saturdays. Based on these hours, the work during weekdays is 40 hours after subtracting 1 hour of break time, and work on Saturdays is 4.5 hours after subtracting half an hour, making the total weekly working hours 44.5 hours. However, in the report that forms the basis of the judgment, this time was evaluated as 45 hours, and overtime was calculated based on the excess of 11 hours. The calculation is incorrect, as the overtime should be 10.5 hours according to the accepted working hours, and the acceptance of 11 hours is erroneous.
3- In the present dispute, the plaintiff has requested that the termination date be accepted as 11.03.2016 and that the calculations be made based on this date.
In the expert report relied upon in the judgment, it is stated that following the reinstatement lawsuit, the plaintiff’s request for reinstatement was notified to the defendant on 26.12.2016, and the defendant did not accept the plaintiff’s request for reinstatement by making a payment via bank transfer on 19.01.2017. Therefore, it was stated that the termination date would be considered as 19.01.2017, and the calculations were made based on this date.
Although the failure to reinstate the worker constitutes a dismissal, the calculations for severance pay and notice pay should be based on the salary and severance pay ceiling as of the termination date due to the employer’s failure to reinstate the worker, the plaintiff’s request was made on 11.03.2016. As a result of the calculation based on the date of 19.01.2017 in the expert report, the request was exceeded, and therefore, the decision must be reversed in this regard as well.
CASE: As the decision given in the case between the parties was requested to be reviewed on appeal by the attorneys, it was understood that the appeal requests were filed within the time limit. After the report prepared by the Investigating Judge was heard, the file was examined, and the necessary discussions and considerations were made.
DECISION: Summary of the Plaintiff’s Claim:
The plaintiff’s attorney stated that the plaintiff worked at the defendant’s workplace between 19.09.2005 and 10.11.2015, including working on rest days, and performed overtime, but did not receive payment for the wages, had accrued leave, and filed a lawsuit for reinstatement after the unjust termination of the employment contract. Despite the acceptance of the lawsuit, the plaintiff was not reinstated. Therefore, the attorney argued that the termination date should be accepted as 11.03.2016, and calculations should be made based on this date. The attorney requested the court to order the defendant to pay severance pay, notice pay, overtime, weekly rest day pay, and annual leave entitlements.
Summary of the Defendant’s Attorney’s Response:
The defendant’s attorney argued that the employment contract was terminated for a just cause, that overtime pay up to 270 hours is included in the salary, that overtime pay exceeding 270 hours was reflected in the payrolls, and that the annual leave pay was paid. Therefore, they requested the dismissal of the case.
Summary of the First Instance Court Decision:
The court ruled in partial acceptance of the claims for severance pay, notice pay, annual leave, overtime, and weekly rest pay.
Appeal application:
The defendant has filed an appeal against the decision of the First Instance Court.
Summary of the Regional Court of Appeals’ Decision:
The appeal filed by the defendant’s attorney was partially accepted, and it was decided to reject the claim for weekly rest day pay, while accepting the claims for severance pay, notice pay, annual leave, and overtime pay.
Appeal:
The decision has been appealed by the parties’ attorneys within the prescribed time.
Reason:
1-) Based on the documents in the case file and the fact that there is no error in the assessment of evidence, all of the plaintiff’s objections and the defendant’s objections, except for those specified in the following paragraph, have been found to be unfounded.
2-) The issue of whether the plaintiff is entitled to overtime pay is a subject of dispute between the parties.
In an employment relationship, the rules regarding wages and the organization of work can be found not only in legal regulations but also in the employment contract between the parties, as well as in regulations, circulars, etc., prepared by the employer and communicated to the employee as annexes to the employment contract. As long as the regulations communicated to the employee do not contradict mandatory legal provisions, they are valid.
Although the defendant employer claims that overtime up to 270 hours is included in the wage, no employment contract containing a provision stating that overtime up to 270 hours is included in the wage has been presented in the case file.
First and foremost, it is necessary for the defendant employer to submit the employment contract, and it must be determined whether the contract contains a provision regarding whether the 270 hours of overtime are included in the wage. If the contract includes such a provision, the overtime pay for the plaintiff’s 270 hours of work per year should be accepted as part of the wage, and overtime pay should be accepted for the part exceeding 270 hours.
3-) There is a dispute between the parties regarding the calculation of overtime.
In the expert report on which the judgment is based; according to the principle of being bound by the request and the plaintiff’s witness statements, it was determined that the plaintiff worked between 09:00-18:00 on weekdays, and between 09:00-14:00 on Saturdays. This work did not exceed 45 hours, but it was accepted that the plaintiff worked an additional 3 hours on three days a week, along with 2-3 nights of overtime work due to malfunction, at a minimum of 4 hours and a maximum of 9 hours per night. Consequently, the plaintiff’s weekly overtime was calculated to be 11 hours, with an additional 2 hours added to the working time.
However, the accepted working hours are between 09:00-18:00 on weekdays, and between 09:00-14:00 on Saturdays. Based on these hours, after deducting a 1-hour break during weekdays, the total working time is 40 hours, and on Saturdays, after a 30-minute break is deducted, the total work time is 4.5 hours, making a total of 44.5 hours of work per week. The expert report, on which the judgment is based, considers this period as 45 hours, and the calculation was made based on an additional 11 hours of overtime beyond that period. However, this calculation is incorrect. According to the accepted hours, the overtime should be 10.5 hours, not 11 hours.
4-) Article 26 of the Civil Procedure Code states, “The judge is bound by the parties’ claims; they cannot rule on more or something different. Depending on the situation, the judge may decide on less than the claimed result.” Therefore, deciding on more than the claim is procedurally incorrect, as it violates the principle of being bound by the request.
In this specific dispute, the plaintiff has requested that the termination date be accepted as 11.03.2016, and that calculations be made considering this date.
In the expert report on which the judgment is based, it is stated that following the reinstatement case, the plaintiff’s notice of reinstatement, which included the request for reemployment, was delivered to the defendant on 26.12.2016. The defendant, however, did not accept the request for reemployment and made a payment to the plaintiff through the bank on 19.01.2017. Therefore, the termination date was considered to be 19.01.2017, and calculations were made based on this date.
Although not employing the worker is considered a form of termination, calculations for severance pay and notice pay should be based on the wage and severance pay cap at the termination date when the employer did not reemploy the worker, the plaintiff’s requested date was 11.03.2016. The expert report, which based calculations on the 19.01.2017 date, went beyond the plaintiff’s request, and therefore, the decision should be reversed on this point as well.
CONCLUSION: The decision of the Regional Court of Appeals that is appealed should be REVERSED due to the reasons stated above.
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