The Opportunity to Sleep and the Specific Nature of Each Job in the Calculation of Overtime

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Introduction:

One of the most significant items in employment receivables is overtime pay. In practice, employers often attempt to avoid paying this wage, try to offset it with leave or holidays, or calculate it deficiently. The employee, on the other hand, typically claims this receivable after the termination of the employment contract.

Although overtime calculations are generally based on work exceeding 45 hours per week, daily working periods exceeding 11 hours also fall within the scope of overtime. The point that requires particular attention here is the determination of rest breaks and the opportunity to sleep, according to the nature of the work performed by the employee. These periods, which are to be deducted from the total working time, directly affect the final amount of the overtime receivable. Despite this, it is observed in practice that previous case law is applied like a rigid template without considering the specific characteristics of each job, resulting in the undercalculation of the employee's receivables.

In this article, how rest breaks and the opportunity to sleep should be taken into account in the calculation of daily overtime will be examined in light of judicial decisions.

The Concept of Overtime in General:

Article 41/1 of the Labor Law defines overtime as work exceeding 45 hours per week:

"Overtime work may be performed for reasons such as the general interests of the country, the nature of the work, or the need to increase production. Overtime work is work that exceeds forty-five hours a week under the conditions specified in the Law."

However, this provision is embedded in the minds of employers and expert witnesses as the sole criterion for overtime. Whereas, Article 4/3 of the Regulation on Working Times Pertaining to the Labor Law explicitly states: "The daily working time cannot exceed 11 hours under any circumstances."

This regulation is particularly important in jobs involving 24/48 shift systems and where the equalization principle is not applied. An employee may be forced to work more than 11 hours in a single day, even if they do not exceed 45 hours a week. For instance, when a nurse or a firefighter works continuously for 24 hours, overtime will accrue because the daily limit is exceeded, even if the total weekly working time does not surpass 45 hours.

The Concept of Overtime Through Judicial Decisions

Determining the Opportunity to Sleep and Rest Breaks:

In the calculation of overtime receivables, accurately determining how much rest opportunity the employee truly has is of critical importance. Accepting the rest period as longer than it actually is directly reduces the employee's receivable.

The General Assembly of Civil Chambers of the Court of Cassation, in its decision evaluating the overtime claim of a firefighter working a 24-hour shift (YHGK, Merit No. 2014/22-2468, Decision No. 2017/229, Date 08.02.2017), found the local court's acceptance that the employee rested for 10 hours to be erroneous. The local court had relied on the case files of employees working in radiolink stations as a precedent; however, the Court of Cassation made the following determination:

"An employee working at a radiolink station also fulfills their need for sleep within the rest period. In contrast, the actual working conditions of a firefighter are different from this."

On these grounds, the Court of Cassation stated that for the 24-hour shift of a firefighter, a total of only 4 hours of rest breaks for meals and other needs should be accepted. Thus, it was concluded that the employee performs 20 hours of actual work in a 24-hour shift, and the portion exceeding 11 hours constitutes overtime.

Concrete Investigation of the Opportunity to Sleep:

The necessity of concretely establishing the existence of a sleeping opportunity was also emphasized in a decision by the 9th Civil Chamber of the Court of Cassation (Y9HD, Merit No. 2017/21853, Decision No. 2017/10287, Date 12.06.2017). The decision stated that deducting a 10-hour rest break from a 24-hour shift without investigating whether the employee working in a duty-free shop had the opportunity to sleep was legally erroneous.

Conclusion:

The case law above demonstrates that the specific nature of each job must be taken as the basis in overtime calculations. In jobs without the opportunity to sleep, such as nursing or firefighting, only a 4-hour rest break should be accepted for an employee working a 24-hour shift; and it must be determined that the portion exceeding 11 hours per day in the remaining time is overtime.

Conversely, in jobs where there is an opportunity to sleep, this matter should be concretely investigated, and the rest break period should be determined by carefully considering the nature of the work. Applying incorrect precedents like a template leads to the undercalculation of the employee's rightful claims.

In conclusion, when claiming an employment receivable, the employee must clearly present the nature of the work, the collective labor agreement (if any), and the specific hours to which night work corresponds; and they must select their means of proof carefully. The full and accurate calculation of the overtime receivable depends entirely on meticulously presenting the actual conditions of the work.

Sincerely,

Atty. M. Deniz HELVACI