Full Benefits for Part-Time Workers: What Employee Representatives Need to Do

Overview: What the BAG Ruling Means for Part-Time Workers

On 28 April 2026 the Federal Labour Court (BAG) confirmed and sharpened its approach to equal treatment of part-time workers when it comes to overtime and extra-pay thresholds (case 5 AZR 96/25, building on 5 AZR 155/22 from 26 November 2025). The court held that a uniform threshold for overtime premiums that applies the same hourly or weekly cut-off to both full‑time and part‑time staff can be unlawful if it makes part‑time workers wait much longer, in relative terms, before receiving the same overtime pay that full‑time colleagues get. In short: equal treatment means proportional thresholds, not a one‑size‑fits‑all full‑time limit.

Key takeaway

The BAG applies an “adjustment upwards” remedy: where discrimination is found, the threshold for paying overtime premiums to part‑time employees must be reduced proportionally according to their contractual hours compared with the tariff full‑time norm. This protects part‑time workers from being disadvantaged simply because their agreed working time is lower.

Legal basis and the role of EU law

The decision rests on § 4 (1) of the German Part‑Time and Fixed‑Term Employment Act (TzBfG), which implements the EU Part‑Time Work Directive. The BAG emphasized the primacy of European law (Vorrang des Unionsrechts) and required a strict proportionality review where differences in treatment are justified by employers. Casual references to “health protection” or administrative convenience alone will not satisfy that review if they leave part‑time staff systematically worse off.

Why the BAG prefers adjustment upwards

Instead of lowering the protection for full‑time employees, the court preserves the higher standard and adjusts the point at which part‑time workers receive the same relative overtime premium. This “adjustment upwards” protects the overall level of employee protection and prevents employers from avoiding costs by treating part‑time work as a discounted version of full‑time work.

Immediate actions for works councils (Betriebsräte)

Works councils must act proactively. § 80 (1) No. 1 of the Works Constitution Act (BetrVG) obliges them to monitor legal compliance — including rules on equal treatment under the TzBfG. Early action reduces the risk of costly back‑payments and mass litigation.

Quick checklist

1. Identify all applicable collective agreements and company pay rules that set a uniform overtime or extra‑pay threshold.
2. Map which employee groups are affected: part‑time, mini‑jobbers, on‑call workers, flex workers.
3. Review payroll and time‑record data for potential underpayment periods and build a sample audit.
4. Open early dialogue with employer to discuss findings and seek corrective measures.

How to audit existing overtime and premium schemes

An effective audit follows a clear step‑by‑step approach: check the legal texts, sample payrolls, compute proportional thresholds and quantify possible back payments. Documentation is essential for any later negotiation or litigation.

Suggested audit steps

1. Collect all relevant tariff provisions, collective agreements and company-level rules on overtime, overtime premiums and extra pay.
2. Establish the tariff full‑time reference hour (e.g. 40 weekly hours) used for threshold calculation.
3. List part‑time contracts, their agreed weekly or monthly hours and categories (fixed part‑time, on‑call, variable).
4. Calculate the proportional threshold for each part‑time contract: threshold_parttime = threshold_fulltime × (contract_hours / fulltime_hours).
5. Compare actual paid premiums against the proportional entitlement for a historical review period (e.g. previous 2–3 years, subject to limitation periods).
6. Document suspected underpayments with concrete examples and employee names (protected handling of personal data applies).

Negotiation points and remedies to pursue with the employer

Works councils should prepare to negotiate concrete, implementable solutions that bring company practice into line with the BAG line while managing financial and operational effects.

Practical remedies to propose

• Introduce proportional (ratable) thresholds for part‑time workers in the Betriebsvereinbarung or company pay rules.
• Agree a remediation plan for any proven underpayments, including clear calculation rules and a defined review period.
• Build clauses limiting retroactive liability where legally possible (e.g. negotiating staged payments), while respecting employees’ statutory claims.
• Clarify treatment for on‑call work and work‑on‑demand models so the 25% call‑up rules and minimum deployment times do not create hidden discrimination.
• Include monitoring and reporting obligations so the works council can review implementation regularly.

Where negotiation stalls, works councils should consider prompting joint legal advice, involving the relevant trade union where applicable, or preparing to support individual or collective claims.

Communication, documentation and employee support

Transparent communication is crucial. Part‑time employees often do not realise they are disadvantaged. Empowering them with information about their rights reduces conflicts and increases trust.

What to communicate and how

• Issue a clear FAQ explaining what overtime premiums are, how proportional thresholds work, and when part‑time workers become eligible.
• Provide guidance on keeping accurate time records and how to check payslips.
• Set up a secure channel for employees to report suspected missing premiums and to submit their time records.
• Offer information sessions or short written guides on rights under the TzBfG and the BAG decisions.

Concrete calculation example

Illustrative examples help to make the proportional adjustment principle tangible for both management and employees.

Common employer arguments and how to respond

Expect employers to raise cost, administrative burden and health‑and‑safety justifications. Works councils should be ready with reasoned counterpoints rooted in law and fairness.

Typical arguments & counter‑arguments

1. Argument: “Uniform thresholds are simpler and administratively necessary.” — Counter: Simplicity does not justify discrimination; proportional rules can be automated and documented to limit admin effort.
2. Argument: “Health protection prevents lowering thresholds for part‑time staff.” — Counter: The BAG requires strict proportionality and concrete evidence; generic health arguments are usually insufficient.
3. Argument: “Retroactive payments would be unaffordable.” — Counter: Negotiate staged remediation, agree reasonable look‑back periods where legally permissible, and prioritise affected groups.

Next steps and longer‑term strategy

Works councils should make this topic permanent on their agenda. The BAG line is part of a developing dialogue between national and European courts; future cases may extend the principle to night, shift or weekend premiums.

Recommended roadmap

1. Complete an initial audit within a defined timeframe (e.g. 6–12 weeks).
2. Open formal talks with the employer and propose proportional threshold clauses and monitoring steps.
3. Inform and support affected employees, collect evidence and document suspected underpayments.
4. Seek coordinated action with unions or legal counsel if necessary and prepare bargaining positions for tariff or Betriebsvereinbarung changes.
5. Design payroll and scheduling processes that prevent future unequal treatment while managing costs through fair distribution of overtime and transparent scheduling rules.

By acting now works councils can protect part‑time colleagues, reduce legal and financial risks for the company, and contribute to a fairer, more transparent pay structure where “part‑time” does not mean “second class” when it comes to overtime and extra pay.