In the event of employment law conflicts or misunderstandings, we provide advice and assistance to employees and employers in all matters. In particular, we advise you on the drafting of employment contracts or on questions regarding the termination of an employment relationship, such as notice periods. In addition, we will stand up for you if you are confronted with wage claims, if the employer's reference is disputed or you have questions on the subject of overtime. In doing so, we support you in out-of-court problem solving or interdisciplinary issues and, if necessary, represent you in a court case.
Employment law questions
The financial compensation of holidays with the current salary is allowed in exceptional cases. According to current case law, the following three conditions must be met:
- It is irregular work.
- The salary component for holiday must be clearly and explicitly stated in the written employment contract as a specified amount and/or percentage.
- The salary component for public holidays and holiday is shown separately on the individual salary statements.
The second and third conditions are not met if they only mention “holiday salary included”. If these criteria are not met, an employer runs the risk of paying twice the holiday salary for the previous five years.
To avoid double payment – even if the above-mentioned case law were to change – there are two alternatives:
- Do not pay the holiday compensation monthly with the current salary, instead credit it to the employee on a separate account. If the employee takes leave, the holiday salary is paid out of this account.
- The employer pays the employee an average pay during his holiday leave.
Overtime must be distinguished from extra hours. An employee works overtime if he works more than the contractual normal working hours. However, if the statutory maximum of working hours are also exceeded (depending on the sector, between 45 and 50 hours), those hours in excess of the statutory maximum working hours qualify as extra hours.
Unless the overtime is compensated with equivalent time off with the employee’s consent, the agreed salary as well as a salary supplement of 25% is in principle owed. However, a different solution may be agreed in writing for the compensation of overtime. Please therefore check your employment contract, the applicable collective employment agreement or standard employment agreement.
The employer must compensate extra hours with an additional salary of at least 25%. Unlike overtime, this additional salary may not be waived in writing.
However, the Swiss Employment Act does not apply to certain groups of people or businesses who therefore cannot claim compensation for extra hours and certain employees are only entitled to the compensation of extra hours from 61 hours. In addition, extra hours may be compensated within 14 weeks with equivalent time off with the employee’s consent. This period of compensation may be extended to a maximum of 12 months by mutual agreement between the employee and the employer.
4 tips for drawing up an employment contract
Once the desired employee has been found, an employment contract must be drawn up. Although the employment contract is regulated by the Swiss Code of Obligations (OR), many SMEs face questions when drafting an employment contract. Here are important points that employers should bear in mind.Read more