The calculation, payment and proof of overtime and of work for extra hours are regulated within the framework of Labour Law No. 4857 and the related regulations.
Working extra hours is regulated in two different forms: 'overtime work' (fazla çalışma) and 'work for extra hours' (fazla sürelerle çalışma). When making the calculation, the type of work and the corresponding rate of increase are determined first:
A. Calculation Rates and Hours
1. Overtime Pay
✦ Definition: Within the conditions set out in the Law, work exceeding forty-five hours per week is overtime.
✦ Pay: Each hour of overtime is paid at the normal hourly wage increased by fifty per cent (50%).
2. Pay for Work for Extra Hours
✦ Definition: Where the weekly working time is set below forty-five hours by contract, work exceeding the average weekly working time and performed up to forty-five hours is work for extra hours.
✦ Pay: Each hour of work for extra hours is paid at the normal hourly wage increased by twenty-five per cent (25%).
✦ By agreement of the parties, the pay for work for extra hours may be made equal to overtime pay (the amount increased by fifty per cent).
3. Overtime in Underground Mining Work
✦ In underground mining work, the weekly working time is at most thirty-seven and a half hours.
✦ If this limit is exceeded, each hour of overtime is paid at the normal hourly wage increased by no less than one hundred per cent (100%).
B. Wage and Hours Used as the Basis for Calculation
✦ Type of Wage: Overtime pay is calculated on the basis of the employee's hourly basic gross wage (çıplak brüt ücret). In Court of Cassation decisions, calculation based on the gross wage including benefits (giydirilmiş brüt ücret) or on the net wage is accepted as a ground for reversal.
✦ Wage for the Period: The wage to be used in the calculation is not the last wage the employee received, but the wage for the period in which the overtime was worked.
✦ Rounding Rule: Periods of less than half an hour are counted as half an hour, and periods exceeding half an hour are counted as one hour.
✦ Daily Maximum Limit: Daily working time, including overtime, may not exceed eleven hours.
✦ Annual Maximum Limit: Overtime worked for general reasons may not exceed two hundred and seventy hours a year. Even if this limit is exceeded, the work performed must be paid for.
C. Calculation for Special Forms of Work
✦ Work on the Weekly Rest Day: If the employee is made to work on the weekly rest day, in addition to the one day's wage they are entitled to without working, they must be paid a wage increased by fifty per cent (1.5 days' wages) for the work, which amounts to 2.5 days' wages in total.
✦ Work During Rest Breaks: If the employee is kept at work or made to work during a rest break on the employer's instructions, this time counts as working time, and if the weekly total exceeds 45 hours, the employee becomes entitled to overtime pay.
✦ Bonus and Percentage-Based Pay: For employees paid on a percentage basis, the portion of overtime pay without the increase is paid from the percentages, while the increased portion (the 50% or 25% difference) is paid by the employer. For employees receiving bonuses, the Court of Cassation takes the view that the bonus is deemed to cover the normal hourly wage for the overtime, so only the 50% increase should be calculated as overtime pay.
2. Payment and Compensation for Overtime and Work for Extra Hours
The employee has the right to claim either increased pay or time off in lieu in return for overtime or work for extra hours.
A. Pay and Interest
✦ Method of Payment: Overtime pay is paid together with the normal wage and must be shown clearly on the payroll and on the payslips that must be given to the employee.
✦ Interest: Since overtime pay is a wage receivable, the highest interest rate applied to deposits applies under Article 34 of the Labour Law. If the employer has not previously been put in default, interest as a rule runs from the date of the lawsuit. However, in the compulsory mediation process, where the employer has not been put in default, the date of application to the mediator should be accepted as the start date for interest.
B. Time Off in Lieu
✦ Entitlement: If the employee wishes, they may take time off instead of increased pay.
o One hour and thirty minutes (1.5 hours) of time off for each hour of overtime worked.
o One hour and fifteen minutes (1.25 hours) of time off for each hour of work for extra hours.
✦ Use: The employee uses the time off they are entitled to within six months, during working hours and without any deduction from their wage. The employee must notify the employer of this request in writing in advance.
✦ Limits on Time Off: For overtime worked for compulsory or extraordinary reasons, the employee cannot waive the right to increased pay and request time off instead.
✦ If Not Used: If the employee is unable to take the time off within the six-month period, or if their contract is terminated, they must be paid the wage corresponding to the overtime.
3. Proof and Documentation of Overtime and Work for Extra Hours
Proving overtime involves different obligations for the employee and the employer.
A. Duty to Document
The employer must prepare a document showing the hours of overtime and work for extra hours worked by its employees, and keep a signed copy in the employee's personnel file. Payments must also be shown clearly on the payroll and payslips.
B. Burden of Proof
✦ Employee's Burden: An employee who claims to have worked overtime must prove this claim. The employee may prove the overtime through witnesses or other evidence.
✦ Employer's Burden: The employer, on the other hand, must prove its claim that the overtime has been paid. This is usually proven through payroll records and payslips.
✦ Role of Payroll Records:
o A payroll record bearing the employee's signature is conclusive evidence until it is proven to be forged.
o Where payroll records are unsigned, or the overtime section of the payroll is blank, the employee may prove the overtime by any kind of evidence.
C. Reasonable Presumption-Based Reduction (Equitable Reduction)
If proof of extra hours relies solely on witness statements, a reduction (a reasonable presumption-based reduction) must be made from the calculated pay. This reduction is based on the presumption that the employee did not work during certain periods of the year. The reduction rate must be consistent with the contents of the case file and, in practice, is applied at no less than thirty per cent (30%). However, if overtime is proven through written documents or the employer's records, this reduction is not made.
D. Limitation Period
Since overtime receivables are treated as wages, they are subject to a five-year limitation period. The limitation period starts from the date on which the receivable becomes due. In addition, the time from the start of the mediation process until the date on which the final report is drawn up is not taken into account in calculating the limitation period (it is suspended).
