Overtime is one of the labor issues that raises the most questions for companies: how much overtime can be worked, how much must be paid for it, when it is mandatory for the employee, and what happens if it is not properly recorded. The implementation of mandatory work-time tracking in 2019 radically changed the landscape: What used to be difficult to prove is now documented on a daily basis. This has consequences for both workers and companies that do not properly manage this issue.
This guide explains everything a company needs to know about overtime under Article 35 of the Workers' Statute.
What do we mean by “overtime” in the Workers’ Statute?
Article 35 of the Workers' Statute defines overtime as those hours of work that exceed the maximum length of the regular workday. In other words, any hours worked in excess of the regular workday specified in a contract or collective bargaining agreement are considered overtime and must be treated as such, either through financial compensation or time off.
| Type | Definition | Mandatory? | Annual Limit | Social Security Contributions (Employer / Employee) |
|---|---|---|---|---|
| Structural | Hours worked to cover production peaks, unexpected absences, or peak periods that cannot be handled by the regular workforce | Voluntary, unless otherwise specified in a collective bargaining agreement or individual contract | They count toward the maximum of 80 hours per yearArt. 35.2 of the Labor Code | 23,60% companies · 4,70% workersRegarding the number of hours worked |
| Force Majeure | Hours worked to prevent or repair accidents or other extraordinary and urgent damage. These do not require prior planning | Yes. The company can require them even if they haven't been agreed upon. | They do not count toward the 80-hour-per-year limitArt. 35.3 of the Labor Code | 14% company · 2% employeeReduced rate due to its exceptional nature |
| Volunteers | Hours worked at the employee's initiative or by mutual agreement, not related to emergency situations or specific production peaks | No. They require an agreement between the company and the employee. | They count toward the maximum of 80 hours per yearArt. 35.2 of the Labor Code | 23,60% companies · 4,70% workersJust like the structural ones |
What is the limit on the number of overtime hours allowed?
Article 35.2 of the ET establishes a A maximum of 80 hours of overtime per year per employee. This limit applies per calendar year and has the following specific provisions: hours compensated with time off within the following four months do not count toward this limit; hours due to force majeure also do not count; and for part-time workers, the limit is reduced in proportion to their work schedule.
Failure to comply with the limit may result in Fines of up to 7,500 euros per violation imposed by the Labor Inspectorate.
In what situations might overtime be necessary in industrial sectors?
In the engineering, construction, energy, and infrastructure sectors, overtime is primarily driven by three situations: load peaks during critical project phases (project completion, commissioning of facilities, delivery of technical documentation), malfunctions or issues that require urgent repair (which in many cases can be classified as force majeure) and planning discrepancies that are transferred to the teams rather than addressed through additional hiring.
This third case is the most problematic: Overtime worked outside of regular hours to cover chronic staffing shortages has a real cost that many companies do not calculate correctly.
Who is eligible to work overtime?
In general, all employees over the age of 18 with full-time or part-time contracts may work overtime within the legal limits. There are some important exceptions: Individuals under the age of 18 may not work overtime under any circumstances; Nor do employees with reduced working hours due to legal guardianship, unless otherwise expressly agreed; and certain collective bargaining agreements may restrict or prohibit overtime in certain sectors or categories.
How is overtime compensated?
Article 35.1 of the Labor Code establishes two methods of compensation, which must be agreed upon in a collective bargaining agreement or an individual contract: affordable fertilizer, in an amount at least equal to the value of a regular hour (the collective bargaining agreement may establish a higher surcharge); or compensation in the form of equivalent paid time off, within four months of its completion.
In the absence of an agreement, The law stipulates that overtime must be compensated with time off. within that four-month period. It is important not to confuse compensation for time off with unpaid leave: the employee is entitled to an equivalent amount of time off, and that time off is paid.
How is overtime paid?
Overtime is subject to Social Security contributions on a different basis. For the non-curricular hours, The company contributes 23.60% and the employee contributes 4.70% based on the number of hours worked. For the hours of force majeure, The contribution rate is lower: the company contributes 14% and the employee contributes 2%. This difference makes it particularly important correctly classify the type of overtime from the outset, since incorrect classification can lead to retroactive premium claims.
Deadline for claiming overtime pay
The statute of limitations for claiming unpaid overtime is one year after they were due, According to Article 59 of the Workers' Statute. With mandatory time tracking, documenting and claiming this type of wage debt is now much easier than it was before 2019.
How are they monitored?
Since May 2019, all companies are required to keep a daily log of the workday that includes the start and end times for each employee. This record must be kept for four years and made available to employees, their representatives, and the Labor Inspectorate. Failure to comply is a serious violation. For the purposes of overtime, The record is the main evidence. both for the company (to demonstrate compliance) and for the employee (to prove that they worked overtime).
Frequently Asked Questions About Overtime Under the Workers' Statute
Is working overtime mandatory?
In general, No. Article 35.4 of the Workers’ Statute (ET) establishes that working overtime is voluntary, unless it has been agreed upon as mandatory in a collective bargaining agreement or in an individual employment contract, within the legal limits. The only exception is work performed due to force majeure, which the company may require to prevent or repair urgent damage.
Is it allowed to work overtime at night?
Yes, although there are some nuances. Night work (between 10:00 p.m. and 6:00 a.m.) is specifically regulated in Article 36 of the Labor Code and is usually subject to special conditions in collective bargaining agreements. It is possible to work overtime during the night shift, but may be restricted or prohibited by the applicable collective bargaining agreement and must comply with the minimum rest periods between workdays.
Which employees are not allowed to work overtime?
The people under 18 are strictly prohibited. Workers in the situation of temporary disability They can't do them either. And workers with reduced work hours due to legal guardianship (care of children or dependent family members) have the right not to work overtime unless expressly agreed upon.
Does overtime count toward retirement benefits?
Yes. Overtime is subject to Social Security contributions and, therefore, contribute to the contribution base which determines future benefits, including retirement benefits. However, the contribution base for overtime is capped separately from other regular compensation.
How many hours of overtime can you work per month?
The law does not set a specific monthly limit, but rather a A maximum of 80 hours per year. Spread out over 12 months, that amounts to an average of 6.6 hours of overtime per month, although the distribution may be irregular. What does indirectly limit the monthly total is compliance with minimum rest periods: 12 hours between workdays and an uninterrupted day and a half each week.
