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

By law, overtime can only be performed by full-time employees and individual full-time employees. Employees who have entered into a part-time employment contract may not perform additional work, except for cases expressly provided by law[1]. At the same time, it is prohibited to perform additional work by employees who have not reached the age of 18.

In order for the performed activity to be considered additional, several cumulative conditions must be met:

1. Work that is performed during the normal duration of working hours, respectively 40 hours per week, stipulated by the Code of Labor Laws as the normal length of working time.

In order for the activity performed by the employee to be working time, it must be performed cumulatively three conditions respectively: (1) the employee performs work, (2) is at the disposal of the employer and (3) the employee performs his tasks and duties in accordance with the provisions of the individual employment contract, the applicable collective labor agreement and/or applicable legislation.

2.The employer engages the employee to perform additional work

An employee cannot unilaterally decide to perform additional work without contacting the employer. The request for additional work must come from the employer and can be explicit or implicit, but it must be unambiguous.

Thus, in the practice of the courts it is established that additional work must be paid, even if there was no direct request from the employer, but the additional work was performed and benefited the employer “As long as the e-mail proves that the extra hours were in the interest of the employer, who benefited from the employee’s work by tacitly acquiescing to the situation, the employee is entitled to compensation for the work performed.”[2]

For example, a situation where there are many additional tasks that go beyond the current tasks and involve additional work can also be considered as tacit acceptance. In judicial practice, it was shown that “the request of the employer is implied, since the existence of certain labor duties, the fulfillment of which led to the extension of legal working hours, is proven.”[3]

In the same sense, the courts established that “Labor law does not require the employer to perform overtime, but establishes it as a mandatory prerequisite for the performance and payment of overtime, however, the employee can benefit from the declared increase not only if the employer would directly require the performance of overtime work. overtime, but also in the situation in which he accepted their performance, or if they turned out to be necessary in connection with the type or scope of work.”[4]

However, not all extra work is considered extra work. Yes, if the employee did not perform his duties during working hours, because, for example, he was engaged in activities not related to the performance of work tasks and duties, but personal activities, in connection with which he was forced to stay beyond the work schedule , this is not additional work. Or if he did not perform his duties during normal working hours, although these duties could have been performed during normal working hours.

At the same time, we will not find ourselves in a situation of additional work, even if the request came not from the employer, but from another person.

3.The employee must agree to perform additional work

Nor can an employer make a decision unilaterally (with some clear and limited exceptions provided by law[5]) for the employee to perform additional work, while his consent is required. The employee agreement must exist (expressly or tacitly) and not be violated, so that the question of forced labor does not arise.

Therefore, the employee’s refusal to perform additional work is not a disciplinary offense, and the employee cannot be held disciplinary liable for this.

Therefore, additional work is not any work performed or intended to be performed by an employee. In each specific case, it is necessary to determine whether the above conditions are met.

Each time these conditions are met and it is additional work, it must be compensated accordingly.

Therefore, additional work is compensated with paid time off for the next 90 calendar days after it is performed – this is the main method of compensation, which is the general rule.

Only in case of impossibility of compensation at the expense of paid time off within the established period of 90 calendar days, in the following month additional work will be paid to the employee through adding an allowance to the salary according to its duration.

Thus, the overtime allowance is an exception and must be accrued in the following month after the expiration of 90 calendar days from the time of overtime work. This allowance is established through negotiations, as part of a collective labor agreement or, depending on the circumstances, as part of an individual labor contract and cannot be less than 75% of the basic salary.

In a situation where additional work cannot be compensated for by paid time off, giving a raise is mandatory and not at the discretion of the employer. Only the amount of this increase can be subject to negotiations between the parties under the specified conditions.

However, in practice, there are many situations where employees who perform additional work do not receive leave and are not paid extra. In such situations, you can take legal action.Claims for overtime pay can be made both during and after employment, but a lawsuit must be filed within the 3-year statute of limitations that begins on the date the rights accrue.

The article is signed by Cătălina DICU ([email protected]), Senior Partner, and Anka Stefania MANOLACHE, Senior Associate ([email protected]) – STOICA & ASOCIAțII.

[1] With the exception of force majeure circumstances or other urgent works aimed at preventing the occurrence of accidents or eliminating their consequences.

[2] Civil decision No. 7946 dated 30.11.2011, issued by the Court of Appeal of Bucharest

[3] Decision No. 2407/2021 dated 14.07.2021 Court of Appeal of Craiova

[4] decision No. 1006/2022 of 18/02/2022 – Bucharest Court of Appeal

[5] With the exception of force majeure circumstances or urgent work aimed at preventing the occurrence of accidents or eliminating the consequences of an accident.