28.02.2024

Extra work must be rewarded

The normal working time for full-time employees is 8 hours per day, 40 hours per week. Work performed in excess of the normal weekly working time is considered overtime. The legal maximum working time may not exceed 48 hours per week, including overtime, with certain exceptions expressly provided by law.

According to the law, only employees who are over 18 years of age and have a full-time individual employment contract may work overtime. Employees who have a part-time employment contract may not work overtime, except in certain situations expressly provided for by law[1]. Employees under the age of 18 are also prohibited from working overtime.

Several cumulative conditions must be met for the work to be considered overtime:

1. The work must be performed in excess of the normal working hours, i.e. the 40 hours/week stipulated by the Labor Code as the normal working hours.

In order for an activity performed by an employee to constitute working time, three cumulative conditions must be met, namely: (1) the employee performs work, (2) the employee is at the employer's disposal and (3) the employee performs his/her tasks and duties as provided for in the individual employment contract, the applicable collective bargaining agreement and/or the legislation in force.

2. Employer to require the employee to perform additional work

The employee may not unilaterally decide to work overtime without a request from the employer. The request to perform additional work must necessarily come from the employer and may be express or implied, but it must be unequivocal.

Thus, in the practice of the courts, it has been decided that payment for overtime work is required even if there was no express request from the employer, but the overtime work was performed and benefited the employer "As long as the electronic correspondence proves that the overtime hours worked were in the interest of the employer, who benefited from the employee's work by tacitly accepting this situation, the employee is entitled to be paid for the work performed."[2]

It may also be considered tacit acceptance, for example, where there are numerous additional tasks which go beyond the employee's current duties and which require additional work to be performed. In case law, it has been held that "the employer's request is implied since it has been proved that the performance of certain work tasks has led to an extension of the statutory working time"[3].

In the same sense, the courts have established that "Labor legislation does not presume the employer's request for overtime, but establishes it as a mandatory precondition for the performance and payment of overtime work, but the employee may benefit from the claimed overtime not only in the hypothesis that the employer expressly requested the overtime, but also in the situation in which the employer accepted the overtime, or if it appeared necessary in relation to the nature or volume of work."[4]

However, not all overtime is considered overtime work. Thus, if the employee did not carry out his specific duties during working hours, because, for example, he carried out activities which were not related to the performance of his official duties and tasks but were personal activities, and subsequently had to stay after working hours, this does not constitute overtime. Or where he did not perform his duties during normal working hours, although those duties could normally have been performed during normal working hours.

Likewise, we will not be in a situation of overtime work if the request did not come from the employer but from another person.

3. The employee must agree to the overtime work

The employer cannot unilaterally (with some exceptions expressly and limitatively provided by law[5]) order the employee to perform overtime work, and the employee's consent is required. The employee's consent must exist (express or implied) and must not be vitiated, so that there is no question of forced labor.

Accordingly, the employee's refusal to carry out overtime work does not constitute disciplinary misconduct and the employee cannot be disciplined for that reason.

Consequently, overtime work is not any work performed or claimed to be performed by the employee. It must be established on a case-by-case basis whether the above conditions are met.

Whenever these conditions are met and overtime is involved, it must be compensated accordingly.

Thus, overtime work is compensated by paid time off within 90 calendar days after the overtime - this is the main method of compensation and the general rule.

Only if the compensation through paid time off is not possible within the prescribed period of 90 calendar days, in the following month the overtime will be paid to the employee by adding a bonus to the salary corresponding to the duration of the overtime.

Accordingly, the additional payment for overtime work is the exception and must be paid in the month following the expiry of 90 calendar days after the overtime work has been performed. This bonus shall be fixed by negotiation in the collective agreement or, where appropriate, in the individual employment contract and may not be less than 75% of the basic salary.

Where overtime cannot be compensated by paid time off in lieu, the bonus is compulsory and not at the discretion of the employer. Only the amount of this bonus can be negotiated by the parties under the conditions mentioned.

In practice, however, there are not infrequent cases in which employees who work overtime receive neither paid time off nor additional remuneration. In such cases, legal action can be taken. Overtime can be claimed both during the employment relationship and after it ends, but the legal action must be brought within the 3-year limitation period, which starts to run from the date on which the rights are due.

An article by Cătălina DICU (cdicu@stoica-asociatii.ro), Senior Partner and Anca Ștefania MANOLACHE, Senior Associate (amanolache@stoica-asociatii.ro) - STOICA & ASOCIAȚII.

[1] Except in cases of force majeure or for other urgent works to prevent accidents or to eliminate their consequences.

[2] Civil Decision No 7946 of November 30, 2011 of the Bucharest Court of Appeal

[3] Judgment no. 2407/2021 of 14/07/2021 Craiova Court of Appeal

[4] judgment no. 1006/2022 of 02/18/2022 - Bucharest Court of Appeal

[5] Except in case of force majeure or for urgent works to prevent accidents or to remove the consequences of an accident