Let’s Talk About Overtime Work

It is important to understand what we mean when we talk about overtime by first knowing its definition.

We define overtime as work performed beyond the limits established by law or those agreed upon by the parties, even if the agreed workday is shorter than the legal maximum.

This definition brings us to an important point: our legislation defines three types of work shifts, each with maximum daily and weekly limits. However, this does not prevent the parties from agreeing to a shorter work schedule, which will govern their relationship for all legal purposes, including the calculation of overtime hours.

Following this logic, what do I mean by the calculation of overtime hours? Overtime should be calculated daily rather than weekly, as determined by judicial and administrative authorities.

Let’s consider an example:

Company A agreed with Pedro on a continuous daytime work schedule of 40 hours per week, distributed from Monday to Friday, from 8:00 a.m. to 1:00 p.m.

Today, Pedro worked until 3:00 p.m.

Company A might think there is no need to recognize overtime because Pedro works under a daytime schedule that allows up to 48 hours, and even with these additional 2 hours, he hasn’t reached that limit.

This reasoning is incorrect for two reasons:
(i) The agreed schedule with Pedro is 40 hours, regardless of the legal maximum applicable to his type of work shift, and
(ii) Overtime is calculated daily. Once Pedro worked past 1:00 p.m., those hours became overtime.

It’s also important to note that hours spent correcting errors attributable to the worker during their regular workday are not considered overtime.

What are the consequences of working overtime?

Time worked beyond the agreed limits must be compensated at 50% more than the regular hourly rate. This rate may vary if work is performed on holidays or rest days.

Is overtime mandatory?

Workers have a duty to assist their employer when requested, which implies an obligation to help in exceptional circumstances.

Does the employer have to notify the worker in advance about overtime?

Overtime, by its nature, is sporadic and often arises from unforeseen needs. Requiring the employer to anticipate the need for overtime would be unreasonable. However, if the employer knows in advance, good faith suggests they should inform or request it in advance.

It is important to note that the regular shift, combined with overtime, must not exceed 12 hours.

We hope this information is useful. Let’s stay in touch.

Marcela Acosta
Partner
Quatro Legal

Disclaimer: The information provided in this blog post is for general informational purposes only and is not intended to constitute legal advice. While we strive to ensure the accuracy and timeliness of the content, laws and regulations are subject to change. For the most accurate and up-to-date information, please contact our office directly. Some images may be AI generated.