Can an employee refuse to work overtime?

Overtime is time worked beyond the daily hours set by law or agreed between the parties, to the extent that those hours are worked with the agreement or at the request of the employer.

In the case of the application of flexible working hours, overtime hours are considered as time worked at the employer's request, beyond the excess hours that are determined by the regulation on flexible working hours, and cannot be carried over to the next reference period. 

Employer's right to impose overtime hours on their employees

The situation of senior management employees is different to the situation of non-executive employees.

Senior management employees

Senior managers are not subject to legal provisions governing working hours; The situation of senior managers is normally covered in their employment contract.

The following employees are considered as senior managers:

  • those who have a salary considerably higher than that of employees covered by collective agreement or who fall under a different pay scale, in view of the time necessary to carry out their employment tasks;
  • those who exercise true management power in the company or whose tasks include well-defined authority;
  • those who are independently in charge of an area of activity or a department;
  • those with a significant degree of independence in the organisation of their work or significant flexibility in their working hours.

Non-executives

An employer may require their employees to work overtime for operational needs provided that they comply with the Luxembourg Labour Code and any applicable collective agreement.

In fact, in the case of exceptional work due to mandatory deadlines, notably, an employer has the right to ask their employees to work overtime. In this event, an employer must be able to expect the employee to agree to work those overtime hours, in return for overtime payment.

The employer has a right to request that their employees work overtime hours, without having to obtain the prior agreement of the employees in question, when the following conditions are met:

  • when the total duration of work, including the overtime, does not exceed 10 hours per day and 48 hours per week (except in the case of force majeure or work undertaken to deal with an accident that occurs or that is imminent);

Example 

An employee may refuse to work overtime if the overtime hours involve exceeding the maximum duration of work, including overtime, authorised by law.

  • when the use of overtime, that must be exceptional, is justified by the operational needs of the business, and does not have a direct impact on the labour market.

Example

The collective agreement for construction sets the exceptional situations in which overtime hours may be worked, and requires that workers be informed at the latest on the day before. If the employer does not comply with these provisions, the employees have the right to refuse to work overtime.

However, employers who regularly and unreasonably impose overtime work on an employee against the latter's will may, in principle, be considered abusive. In such a case, the employee's refusal to work overtime would not, in principle, be considered wrong.

Employees' right to refuse to work overtime

Employees may refuse to work overtime depending their personal situation or employee category.

Categories of employees that have a right to refuse to work overtime

An employer cannot legally require temporary agency workers, pregnant or breastfeeding employees or apprentices or part-time employees to work overtime.

In other words, an employer can ask them to work overtime, but workers in these categories have the right to refuse.

Situations in which an employee can refuse to work overtime 

In very exceptional cases, an employee can refuse to work overtime if the employer has not allowed the employees time to organise themselves, taking account of the special situations of each:

Examples 

A young employee who is a mother of 2 children whose husband is sick cannot be required to come to work on a Saturday morning, if she is only notified the day before, when her employer would have been able to notify her well in advance. 

An employee cannot be required to work overtime immediately after returning from a long period of incapacity for work due to an occupational accident, when that employee could not work overtime due to health problems documented by medical certificates.

Employees for whom overtime work is prohibited 

Overtime work by adolescents (up to 18 years old) is generally prohibited, except in very specific conditions and situations, such as cases of force majeure.

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