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Why the usual clause fails
On 01/09/2010 (5 AZR 517/09) the Federal Labour Court held that a clause settling all overtime across the board breaches the transparency requirement in section 307(1) sentence 2 BGB. The reason: anyone signing the contract cannot see what they are taking on.
The consequence is not that the clause is reduced to a permissible level. It falls away entirely, and the statutory rule applies: every hour of overtime has to be paid.
What can be validly agreed
A clause naming a specific number of hours is permissible where the number stays proportionate to the working time. In the case law, a figure of around ten percent of the contractual working time is treated as a reference point.
For employees on considerably above-average pay, a broader settlement can be effective. The Federal Labour Court takes its bearings from the contribution assessment ceiling of the statutory pension insurance: anyone earning above it cannot, by common understanding, expect separate pay for overtime (judgment of 22/02/2012, 5 AZR 765/10).
Example: a permissible limit
- Contractual working time: 40 hours a week, so around 174 a month.
- Ten percent of that is around 17 hours.
- Permissible clause: "Up to 15 hours of overtime a month are covered by the salary."
- Every hour beyond that has to be paid or offset separately.
Common mistake
The ineffective clause stays in the contract template because it has never been challenged. It works exactly until somebody sues, and then retroactively for the whole period not yet time-barred.
This is not legal advice; for a specific case at your workplace you are better off asking someone qualified to give it.
Published by: AMNAU GmbH
Editorial responsibility: Ugur Aydogan, Product development.
Last reviewed: 2 September 2026