Staying at work for overtime, i.e. above the employee’s working time norms (usually this will be work performed in excess of 8 hours in a day) due to the specific needs of the employer has become the norm for many years.
According to a report presented by Randstad in July 2019, almost 75% of employees admit to working overtime, of which 14% work overtime daily or almost daily and 21% work overtime at least once a week. Statistically, the person most often working overtime is a woman aged between 30-49 years old with a university or primary education. The survey clearly shows that overtime work is most often associated with managerial positions: 89% of respondents in middle management positions declared working overtime while in management positions 83% of respondents declared working overtime. In management and executive positions, it has become an unwritten rule (and often the employer’s expectation) to answer business phone calls and e-mails outside working hours.
For overtime work, in addition to the normal remuneration, the employee is entitled to an allowance of 50 or 100% (depending on the time of day or the type of day, e.g. public holiday, Sunday) or a day off.
There are exceptions to this rule. According to Article 151(4) of the Act of 26 June 1974 – the Labour Code (i.e. Journal of Laws of 2020, item 1320, as amended), hereinafter referred to as the “Labour Code” employees managing the workplace on behalf of the employer and managers of separate organisational units perform, if necessary, work outside normal working hours without the right to remuneration and overtime work allowance. However, managers of separate organisational units are entitled to remuneration and overtime bonus for overtime work on Sundays and public holidays, if they have not received another day off in exchange for work on such a day.
Considering the above, one may come to a conclusion that the remuneration of managers and heads of separate organisational units, despite seeming attractive at first glance, in reality, is not so attractive. Mainly, in the case of those employees whose, scopes of responsibilities are extensive or the employer’s expectations are so high that overtime work becomes an everyday occurrence.
Despite the legislator’s use of the phrase in the cited article: “perform when necessary”, many employers take unlimited advantage of the unpaid possibility of permanent availability of their managers expecting availability 24 hours a day, 7 days a week, or turning a blind eye to the fact that the tasks assigned to them with proper management of the subordinate unit have an impact on exceeding working time standards. Undoubtedly, the procedure in question is supported by cost-cutting for the employment of the required number of people in individual departments, the performance by managers of purely operational activities (due to an insufficient number of “hands to work”), the lack of necessity to record employment under the task-based working time system, which makes it much more difficult to prove the performance of overtime work in case of a dispute in this respect.
The above seems to be confirmed by the above-mentioned Randstad report. According to the data, as many as 20% of respondents representing all levels of positions declared that the employer does not compensate them in any way for overtime worked. In all likelihood, it can be assumed that in this group were also people representing management and managerial positions.
Employers who undoubtedly benefit from the “permanent unpaid overtime” of managerial and executive personnel should note that according to the current interpretation of the provision of Article 151(4) § 1 of the Labour Code, managerial employees (managers) retain the right to remuneration and an allowance if they prove that they worked permanently outside their normal hours, with the reservation that the overtime work of the employee resulted from the organisation of work imposed by the employer and not from an autonomous decision of the employee (Decision of the Supreme Court of 15 December 2020, III PK 24/20).
Moreover, the provision of Article 151(4) of the Labour Code does not cover managers of the lowest level (e.g. foremen) whose impact on the organisation of working time is insignificant and who, in principle, perform the same work as their subordinates (K. Jaśkowski [in:] E. Maniewska, K. Jaśkowski, Commentary updated to the Labour Code, LEX/el. 2021, art. 151(4)). According to the judgment of the Supreme Court of 13 January 2005, II PK 114/04, the scope of application of Article 135 of the Labour Code (now Article 151(4) of the Labour Code) does not include managers of separate organisational units of a workplace, whose duties are not limited to organising the control and supervision of the activities of employees of a unit subordinate to them, but consist of performing work on equal terms with them.
Also, the manager of a separate unit in the employer’s organisational structure, who does not organise the working time of the staff subordinate to him on his own, is entitled to remuneration for overtime work (a contrario Article 151(4) of the Labour Code) if the employer has imposed work in this unit in excess of the applicable working time standards, defining a rigid working time schedule for all employees of this unit, i.e. from 7 a.m. to 5 p.m. (Judgment of the Supreme Court of 21.03.2019, II PK 332/17).
At the same time, it should be emphasised that employers may not expand the group of entities referred to in Article 151(4) of the Labour Code in internal company acts or employment agreements. Article 151(4) § 1 of the Labour Code is unilaterally mandatory, which means that both in a collective agreement and in an employment contract it is allowed to agree on additional remuneration for overtime work of persons employed as managers of separate organisational units of the workplace, but it is not legally effective to exclude the right to such remuneration of employees employed in managerial positions other than those specified in this provision (judgment of the Supreme Court of 12 July 2005, II PK 383/04).
An attempt to circumvent the Labour Code by regulating the issue of not being subject to overtime pay differently in contracts or internal company acts, as well as a deliberate action of the employer focused on limiting employment expenditures by not paying managers all due to remuneration components (including overtime earned) does not seem to be a good long-term strategy. The consequence of such an action will not only be the employee’s claim for overtime pay and the costs related to it, but also inefficiency, frequent sickness absence, loss of “valuable” human resources, lack of effective management of a given area until a new manager is recruited and trained, and even the appearance in the media or on the Internet of an unflattering opinion about the employer, which may make it much more difficult to attract valuable employees.