OVERTIME PAY RIGHTS IN TURKEY: NAVIGATING THE COMPLEXITIES OF COMPENSATION FOR OVERTIME WORK

WHAT IS THE OVERTIME PAY RATE?

Overtime work in Turkey refers to additional working hours requested by employers outside of regular working hours. According to the Labor Law, overtime hours must be paid when the weekly working hours exceed 45 hours. Any hour exceeding this threshold is legally considered as overtime hours and employees must be compensated with additional pay.

Under Turkish law, the overtime pay rate is higher than the regular hourly wage. It is calculated based on the hourly rate of regular working hours.

The overtime pay is calculated at a certain percentage of the regular hourly wage. According to the Labor Law, the overtime pay rate must be at least 50% of the regular hourly wage. This rate cannot be lower than the rate specified in a private employment contract. In other words, employers cannot pay employees a lower wage for overtime hours.

The calculation of overtime wage is based on the regular working hours. For example, if the regular hourly wage is 10 TL, the overtime wage should be at least 15 TL. This means that an additional 5 TL will be paid as overtime wage for each hour.

In conclusion, the Labor Law obligates employers to pay additional payment to employees for overtime hours. This is important for protecting employee rights and ensuring a fair working environment. Employers should be cautious about overtime hours and respect the rights of their employees.

THE DIFFERENCE BETWEEN WORKING EXTRA HOURS AND WORKING OVERTIME

Working extra hours and working overtime are different concepts. Working overtime refers to additional hours worked outside of regular working hours, while working extra hours means working beyond the normal working hours.

According to the Labor Law, the weekly working hours are set at 45 hours. However, in some cases, employers may require employees to work additional hours beyond the regular working hours. In this situation, employees can work more than the normal weekly working hours. For example, an employee with a weekly working hour limit of 45 hours can work 10 hours on certain days, thus exceeding the weekly working hour limit and working a total of 50 hours in a week.

Working extra hours means working beyond the normal weekly working hours, while working overtime refers to the additional hours worked outside of the regular working hours. Working extra hours is considered part of the normal working hours and is paid at the regular rate, while overtime hours are compensated with an additional payment based on a specified percentage of the regular wage.

Another difference is that employers have more flexibility in requesting employees to work extra hours. Employers can request employees to work beyond the normal weekly working hours and compensate them at the regular rate. However, the payment for overtime hours is legally determined, and employers are obligated to provide the specified additional payment.

In conclusion, working extra hours means working beyond the normal weekly working hours, while working overtime refers to the additional hours worked outside of the legally defined weekly working hours, for which an additional payment is required.

When the weekly working hours are set below 45 hours, any work exceeding the applied weekly working hours and up to 45 hours is considered as working extra hours. According to Article 41 of Law No. 4857, working extra hours should be compensated with a 25% increase in pay, while overtime hours should be compensated with a 50% increase in pay.

DOES THE EMPLOYEE’S CONSENT REQUIRED FOR OVERTIME?

The employee’s consent is required for overtime work in Turkey. According to the Overtime Work Regulation, the employee’s consent is not required for mandatory overtime and working beyond regular working hours. When calculating overtime hours, the employee’s request should be taken into account, and it should not exceed their request. Rest periods should be deducted from the daily working hours.

In cases where overtime work is calculated for a long period and the amount becomes significant, a fairness deduction should be applied. Courts generally apply a fairness deduction of around 30% in such cases.

In Turkey, according to the Labor Law, employers can require their employees working overtime as long as it does not exceed the weekly working hours of 45 hours. However, the employee’s consent is necessary for overtime work in Turkey. If an employee does not want to work overtime, the employer cannot force them to do so. If extra work is imposed on the employee without their consent, they have the right to bring this matter to the labor court.

Employers should clearly state their request for overtime work in writing and the employee should sign it. Otherwise, the employee may not receive the rightful overtime.

Therefore, it is recommended for employers not to allow employees to working overtime without written consent. It is important for employees to be informed and understand the overtime wage, working hours, and other conditions before giving consent to extra work in Turkey for the sake of evidence.

PROOF OF OVERTIME PAYMENT

Overtime pay is the compensation for additional hours worked outside of regular working hours. The rate of overtime pay is determined in the employment contract or collective agreement signed between the employer and the employee.

In terms of documenting overtime work in Turkey, the employer is required to prepare a document showing the working hours and keep a signed copy in the employee’s personnel file for the workers who perform overtime and work beyond regular working hours. If overtime is not indicated on the wage statement, according to the witness testimonies, the calculation should be made for those months and included in the judgment.

Carrying out overtime work in Turkey without the written consent of the employee can lead to complications. It is the responsibility of the employee to prove whether or not overtime has been received. If an employee claims to have worked overtime without receiving the corresponding payment, they have the burden of proof.

To prove overtime wage, the employee should maintain consistent records of working hours and wages. These records can be compared with the employer’s records to identify any inconsistencies. Additionally, the employee should obtain a signed overtime instruction from the employer when working overtime. This instruction demonstrates that the employer called the employee for overtime work and specified the duration of work.

Leaving the overtime section blank on the wage statement does not necessarily mean that the employee did not work overtime. In such cases, the employee can prove extra work by presenting witness testimonies from colleagues who worked together during that period. The Supreme Court has ruled that if overtime pay is accrued on some wage statements and the employee accepts such payments without objection, it is not possible to claim additional overtime pay for the same periods.

Testimony from witnesses is also important in proving contingency allowance. The employee can state that they worked overtime and did not receive the corresponding payment, and can gather supporting witnesses. The testimonies of witnesses can assist in proving the accuracy of the employee’s claims about unpaid overtime.

Additionally, if a higher-level employee in the organizational structure is compensated appropriately and has the authority to determine their own working days and hours without another manager instructing them, it may be determined that they are not entitled to overtime pay.

In conclusion, the burden of proof for overtime pay lies with the employee. The employee should keep records of working hours and wages, obtain overtime instructions, and use witness testimonies to prove the unpaid overtime. These claims should be consistent with bank records. If the employee successfully proves their claims, the employer is obligated to pay the contingency allowance owed to the employee.

IS THE UNPAID OVERTIME WAGES A VALID REASON FOR TERMINATION?

The non-payment of overtime can be a valid reason for an employee to terminate their employment contract. However, there are certain steps that need to be followed. Firstly, the employee should send a written notice to the employer regarding the unpaid overtime wages, and if this notice is not taken into consideration or the issue is not resolved within a certain period of time, then the employee may have grounds for termination.

According to the Turkish Labor Law, employers can require employees to work overtime, as long as it does not exceed a weekly limit of 45 hours. In return for overtime work in Turkey, employees are entitled to receive contingency allowance. If an employee’s contingency allowance remain unpaid, they should send a written notice to the employer, requesting payment.

If the employer still fails to pay the overtime despite the notice, the employee may terminate the employment contract with just cause. However, it is advisable for the employee to seek legal advice before exercising their right to terminate the contract, as they need to substantiate their just cause for termination.

Nevertheless, terminating the employment contract solely based on the unpaid overtime wages may not always be the right decision. The employee may face difficulties such as unemployment as a result of termination. Therefore, it is recommended that employees seek legal support during discussions, notices, and negotiations with their employers.

Options for an Unpaid Overtime Wage

If the contingency allowance is not paid to the employee, here are the options that the employee can pursue. Non-payment of overtime gives the employee the right to terminate the employment contract with just cause. The employee can seek mediation or file a lawsuit. Currently, it is mandatory to apply for mediation before filing a lawsuit; otherwise, the lawsuit will be dismissed on procedural grounds. The employee claiming to have worked overtime has the burden of proving this claim. Precedent cases support this direction.

• Sending a written warning to the employer: The employee can send a written warning to the employer, demanding payment of the overtime. This warning will be the employee’s final written notice to the employer.
• Terminating the employment contract: Failure of the employer to pay the overtime amount can constitute just cause for the employee to terminate the employment contract. However, it is recommended that the employee seek legal advice before exercising their termination right.
• Filing a lawsuit in the Labor Court: The employee can file a lawsuit in the Labor Court to claim their unpaid overtime wage. Before resorting to litigation, the employee should try to reach a settlement with the employer through negotiation. Additionally, it is important to remember to make a mandatory application for mediation before filing a lawsuit; otherwise, even if the employee has a valid claim, the lawsuit will be dismissed on procedural grounds.
• Filing a complaint with relevant institutions: The employee can file a complaint against the employer with relevant institutions for the unpaid overtime. In Turkey, these institutions include the Ministry of Labor and Social Security, and the Turkish Employment Agency.

STATUTE OF LIMITATIONS FOR UNPAID OVERTIME WAGE

According to Article 32/8 of Law No. 4857 on Labor, a statute of limitations of 5 years has been explicitly established. The statute of limitations is calculated from the date of filing the lawsuit. In a partial lawsuit, although the initially claimed amount is not affected by subsequent adjustments, any amount exceeding 5 years until that period becomes subject to the statute of limitations. Therefore, when filing a partial lawsuit, careful attention should be paid to the initial amount claimed and the statute of limitations.

SOME PRECEDENT DECISIONS REGARDING OVERTIME WORK IN TURKEY

In Turkey, although labor law operates under the Labor Law, the precedent decisions of Labor Courts and higher courts guide the implementation. Here are some important precedent decisions about overtime work in Turkey related to labor law:

• Periods with attendance records can be proven with records, while other periods can be proven with witnesses. (Court of Cassation 22nd Civil Chamber, Case No. 2017/7690, Decision No. 2017/10364, Date: 08.05.2017)
• Unworked annual leave periods should be excluded. (Court of Cassation 9th Civil Chamber, Case No. 2010/17818, Decision No. 2012/25792, Date: 03.07.2012)
• Breaks during overtime should be deducted. Not deducting any breaks is incorrect. (Court of Cassation 22nd Civil Chamber, Case No. 2012/11806, Decision No. 2013/1258, Date: 29.01.2013)
• The statements of an employee who left before the plaintiff are considered for the period until their departure date. (Court of Cassation 9th Civil Chamber, Case No. 2009/28466, Decision No. 2011/47142, Date: 05.12.2011)
• The testimony of a witness only proves extra work for the period worked together. (Court of Cassation 9th Civil Chamber, Case No. 2010/2714, Decision No. 2012/11039, Date: 02.04.2012)
• Making a decision based on a report prepared according to the work method at another construction site is incorrect. Work performed at a different workplace cannot serve as a precedent. (Court of Cassation 9th Civil Chamber, Case No. 2015/11781, Decision No. 2017/13759, Date: 20.09.2017)
• Unsigned but approved attendance records in official workplaces are taken into account. (Court of Cassation 9th Civil Chamber, Case No. 2012/18021, Decision No. 2012/32780, Date: 03.10.2012)
• It is not possible for the plaintiff’s witnesses, who are relatives, customers, neighbors, or employees of another workplace, to know the working hours at the workplace. (Court of Cassation 22nd Civil Chamber, Case No. 2013/14874, Decision No. 2014/17902, Date: 18.06.2014)