Part-time job at a pizza delivery service: No entitlement to late payment if the permitted working hours are exceeded.

Many people with mini-jobs mistakenly assume that a 20-hour week automatically applies without an explicit agreement.

An employee who already held a full-time job with 38 hours per week demanded payment for hours not worked in his secondary job. The Berlin-Brandenburg Regional Labor Court (LAG) rejected this claim: The statutory maximum working time of 48 hours per week is the upper limit. Therefore, there is no entitlement to further back pay.

Late payment demanded: Dispute over unused working time in a mini-job

A part-time worker, who worked as a pizza delivery driver alongside his 38-hour main job, demanded back pay for hours not worked. His contract did not stipulate a fixed weekly working time, but rather employment on an as-needed basis. The plaintiff invoked Section 12 Paragraph 1 Sentence 3 of the Part-Time and Fixed-Term Employment Act (TzBfG), according to which, in the absence of an agreement, a regular weekly working time of 20 hours is deemed to be agreed upon. Since he was actually deployed less frequently, he claimed back pay for a total of 316.6 unused hours.

Ruling on mini-jobs: No back payment for exceeding maximum working hours

The Berlin-Brandenburg Regional Labour Court (LAG) ruled that the minijobber is not entitled to back pay, as he was already fully occupied by the legally stipulated maximum working time of 48 hours per week (§ 3 ArbZG).

At the same time, the ruling makes it clear: If there is no clear contractual agreement on working hours, a weekly working time of 20 hours can be considered tacitly agreed in the event of a dispute, according to Section 12 of the Part-Time and Fixed-Term Employment Act (TzBfG) – with potential consequences for employers.

Important ruling: Risks for employers when working time regulations are lacking in mini-jobs

The ruling by the Berlin-Brandenburg Regional Labor Court highlights the risks for employers who employ part-time workers without clearly defined contractual working hours. If no working hours are agreed upon, there is a risk – especially after the termination of the employment relationship – of claims for back pay for allegedly unused hours.

Especially in industries with a high demand for flexible workers, such as catering or retail, such additional demands can pose financial risks – in extreme cases even threatening the existence of the business.

Employers have a responsibility: Minijobs without clearly defined working hours pose legal risks.

Many part-time workers are on call – often without a written agreement on their weekly working hours. A recent ruling by the Berlin-Brandenburg Regional Labor Court (LAG) demonstrates how risky this can be for employers: Without a clear contractual agreement, part-time workers can retroactively claim back pay for unused hours after termination of employment – for the entire duration of the employment relationship.

Especially in companies with call-off contracts, this can lead to substantial back payments, which in the worst case can jeopardize their economic existence.

Lesson from the mini-job ruling: Why clear working time regulations are indispensable

The ruling by the Berlin-Brandenburg Regional Labor Court makes it clear: Without clear contractual agreements regarding working hours, employers risk costly repayment claims – especially in the area of mini-jobs. Sectors such as the hospitality industry and retail, which rely on flexible working time models, are particularly affected.

A written agreement on weekly working hours effectively protects against subsequent claims and legal disputes.

The Federal Labour Court (BAG, 10.08.2022 – 5 AZR 154/22) had already clarified: If clear guidelines are lacking or instructions from the employer are unreasonable, this can lead to default of acceptance and claims for payment.

Companies should therefore urgently review their contract templates and adapt them if necessary to avoid legal pitfalls.

Proactive measures: Clear employment contracts protect against the risk of late payment penalties.

Employers should take action now: Clear and written working time regulations in mini-job contracts are essential to avoid legal pitfalls. Existing contracts should be reviewed and vague wording specifically revised.

The recent ruling by the Berlin-Brandenburg Regional Labor Court clearly demonstrates how quickly costly claims for late payment wages can arise from a lack of regulations.

Tip: Clearly define the weekly working hours in the contract – this creates legal certainty and protects against retroactive claims.

As an experienced law firm specializing in employment law, we support you in consistently minimizing legal risks associated with mini-jobs. We review your existing contracts, formulate legally sound working time regulations, and help you effectively prevent claims for back wages.

Trust in our expertise – for clear conditions and legally secure working relationships.
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