Overtime in Poland: foreigners’ rights and employers’ obligations

Foreigners working in Poland are often unaware of their employment rights under the Polish Labour Code and specific regulations. In practice, many foreign employees mistakenly assume that their rights differ from those of Polish citizens. However, as a rule, foreigners should be treated on an equal footing with Polish employees, and any different treatment (except for exceptions resulting from statutes) may constitute a violation of Polish labour law.

Our law firm’s experience shows that employers relatively often violate these rights, especially in relation to employees who are less familiar with the Polish language or the regulations in force in Poland. Employer abuses most often concern working time and overtime of foreign employees.

In this publication, we present the most important issues related to overtime at work and the evidence that an employee can use in court disputes over overtime pay.

Basic working time system in Poland

The basic working time system is the most common and default system used by employers in Poland. In the basic working time system in Poland, an employee works a maximum of 8 hours per day and an average of 40 hours per week. This usually means working 5 days a week, 8 hours a day, regardless of nationality. The settlement period, i.e. the time during which working hours are settled, may last up to 4 months. During this time, the employer must arrange the schedule so that the employee’s work does not exceed an average of 40 hours per week.

Importantly, in the basic working time system, any work order exceeding 8 hours per day is, as a rule, considered overtime, which requires the payment of an allowance or the granting of time off in accordance with the provisions of the Polish Labour Code.

What is overtime according to Polish labour law?

According to Article 151 § 1 of the Polish Labour Code, work performed in excess of the employee’s working time standards, as well as work performed in excess of the extended daily working time resulting from the employee’s working time system and schedule, constitutes overtime. Overtime work is permissible in the following cases:

1. the need to carry out rescue operations to protect human life or health, protect property or the environment, or repair a breakdown;
2. the specific needs of the employer.

It is precisely this second condition – ‘special needs of the employer’ – that raises the most doubts and disputes in practice. This concept is a general clause that has not been defined in the Polish Labour Code. It is generally accepted that the employer assesses whether this premise has been met in a given situation, which naturally gives rise to the risk of abuse.

Two competing views on the scope of the concept of ‘special needs’ have developed in Polish legal doctrine. According to the first, more restrictive position, special needs include only extraordinary, unforeseen and difficult to plan situations — those which, by their very nature, should not occur regularly. Proponents of this approach point out that the flexibility of the regulations should not lead to circumvention of working time restrictions.

The second position, however, takes a broader view of this premise. According to this position, special needs of the employer may also arise in a situation where it is necessary to employ an employee in excess of normal working hours in order to perform the normal, day-to-day tasks of the company, provided that this does not lead to a specific person being permanently burdened with overtime work. This approach takes into account the organisational realities of many workplaces, where it is impossible or disproportionately difficult to quickly recruit additional staff or reorganise tasks.

However, our experience shows that in many cases in Poland employers force employees to work overtime, explaining this with ‘company needs’, ‘special circumstances’, ‘staff shortages’ or ‘the need to complete a project’. Foreigners, often fearing the loss of their job or residence permit, agree to such conditions, unaware that overtime cannot be abused and that the employer must justify, record and account for it in accordance with the provisions of the Polish Labour Code. Any exceeding of the daily or weekly norm constitutes additional working hours for which an allowance or time off is due.

A practical example from Polish case law:

“In other words, Article 1514 of the Polish Labour Code prohibits employers from implementing organisational solutions which, by their very nature, necessitate the constant performance of overtime work by employees in managerial positions. Overtime work by such employees is only permissible in exceptional cases, ‘when necessary’. Therefore, an employer cannot assign an employee duties that cannot be performed during normal working hours. It is therefore not possible to apply organisational solutions that would, by their very nature, require constant overtime work. It follows from the above that persons employed in managerial positions cannot be deprived of their right to remuneration for overtime work if faulty work organisation forces them to systematically exceed working time standards” (judgment of the Supreme Court of 20 February 2020, ref. no. I PK 247/18).

What kind of working time overruns constitute overtime according to Polish Labour laws?

As indicated in case law, Polish labour law does not recognise the concept of a ‘negligible’ exceedance of daily or weekly working time standards. This means that even a slight exceedance of these standards constitutes full-fledged overtime work. Therefore, if it is determined that the daily or weekly standard has been exceeded, even by a dozen or so minutes, the employee is entitled to overtime pay, regardless of how slight the excess was or what its causes were. It is therefore irrelevant whether the employee exceeded the daily standard by three minutes or three hours, as in both cases there will be an obligation to settle overtime in accordance with the provisions of the Polish Labour Code.

Task-based work mode and overtime in Poland

As provided for in Article 140 of the Polish Labour Code, in cases justified by the type of work or its organisation or the place of work, a task-based working time system may be used. The task-based system in Poland may be implemented in justified situations related to the type of work, work organisation or place of work. However, the scope of the employee’s tasks must be determined in such a way that the employee can perform the tasks within the working time standards: 8 hours per day and an average of 40 hours per week.

In practice, Polish employers often use task-based work as a way to conceal overtime. It seems that foreigners are particularly vulnerable to this type of abuse, as they may not know their rights or may be afraid to report overtime due to concerns about their residence status. In any case, however, exceeding the above standards still means that overtime has been worked and therefore the employee has a claim against the employer.

A practical example from Polish case law:

“It should be emphasised again that in the case of task-based working time, tasks should be set in such a way that the employee, with due diligence and conscientiousness (Article 100 § 1 of the Polish Labour Code), can perform them within 8 hours per day and 40 hours per week in a five-day working week in the adopted settlement period. The view that the introduction of a task-based working time system does not exclude the application of the provisions regulating overtime work should be considered established in case law. Persons employed under a task-based working time system cannot be deprived of their right to remuneration and overtime pay if, as a result of faulty work organisation beyond their control, they are forced to systematically exceed the applicable working time standards.” (judgment of the Polish Court of Appeal in Poznań of 13 June 2024, ref. no. III APa 18/22)

Overtime and tacit acceptance by the employer

Importantly, an order to work overtime may be issued by the employer in any manner, including implicitly. This occurs when an employee undertakes additional work on their own initiative, but with the employer’s knowledge. The courts indicate that the condition for recognising the employer’s implied consent to overtime work is the employer’s awareness that the employee is performing overtime work.

This situation may apply in particular to foreigners who, even though they are fully aware of the regulations or the language, may not understand that the employer’s tacit acceptance also results in an obligation to pay overtime.

Consequently, in Poland in order to consider that overtime work was lawful and required an allowance, a formal order is not necessary – it is sufficient that the employer knew or should have known that the employee was working more than the standard working time. In practice, therefore, the mere lack of objection by a supervisor to an employee performing their duties in their presence may be classified as an instruction to work overtime.

A practical example from Polish case law:

“An instruction to work overtime (Article 135 of the Polish Labour Code) does not require any specific form. The lack of objection by a superior to an employee performing their duties in their presence may be classified as an instruction to work overtime.” (judgement of the Polish Supreme Court of 14 May 1998, ref. no. I PKN 122/98)

Form of overtime work order in Poland

In Poland the employer is not obliged to issue an overtime work order in a specific form. Such a work order may therefore be issued in any manner by any action of the superior that sufficiently reveals his or her intention.

In practice, it is common for employees to include provisions in the work regulations stipulating that they are required to obtain a direct (e.g. in the form of an email) order to work overtime. It would seem that this minimises the presumption that the employer accepts overtime work. However, even if the employer is fully aware of and accepts this type of situation, this does not mean that the employee is not entitled to overtime pay. What is important is the employer’s awareness and acceptance of overtime, not the form of the instruction itself.

However, in the case of full awareness and acceptance by the employer of such work being performed by the employee, such a provision cannot be a barrier to the employee asserting their rights.

For example, if an employee’s supervisor is present at the place where the employee performs their work and notices that the employee is working overtime, for example on a Sunday or public holiday, but does not react to these facts, silently approving it or at least consenting to it, then this type of behaviour on the part of the superior can be considered equivalent to a properly issued order to work overtime or on a day off.

A practical example from Polish case law:

“The provision of Article 135 of the Polish Labour Code does not contain a requirement for an “express” order from a superior to work overtime. The order may therefore be issued in any manner, through any behaviour on the part of the superior that sufficiently reveals his or her will.” (judgment of the Polish Supreme Court of 5 February 1976, ref. no. I PRN 58/75)

“The condition for the employer’s implied consent to overtime work is the employer’s awareness that the employee is performing such work.” (judgment of the Polish Supreme Court of 26 May 2000, ref. no. I PKN 667/99)

Overtime litigation in Poland – what you need to know

In a situation where an employer refuses to pay additional remuneration for overtime worked, an employee has the right to refer the matter to a Polish labour court. Claims for overtime pay are, in practice, among the most frequently pursued employee claims, although in many cases it may be difficult to present relevant evidence to the court. The employee is required to prove that they worked overtime, indicate the specific periods when the overtime was worked, and that the employer ordered or at least accepted such work.

In cases brought by employees for overtime pay, the general rule derived from the Polish Civil Code applies, according to which the employee must prove their claims regarding overtime worked. At the same time, many judgments indicate that if the employer does not keep records of working time or keeps them incorrectly, this circumstance may work in the employee’s favour. However, the mere absence of records does not automatically mean that the employee worked overtime; it is necessary to assess all the evidence.

In this situation, in Poland the employee may use other means of evidence to prove overtime. In practice, the following may have significant evidential value:

• e-mail correspondence and business instant messengers (e.g. Teams, Slack, WhatsApp) showing that the employee performed work duties outside normal working hours;
• files, reports and documents saved or sent in the evening, at night or at weekends;
• system logs, e.g. logs of logins to the employer’s IT system, terminal, server, CRM, alarm system or building entry registers;
• printouts from GPS or business applications, in situations where the employee was travelling while performing their duties;
• witness statements, e.g. from colleagues, customers or third parties who can confirm actual working hours, the performance of work duties or the standard of work organization.

It is worth noting that even if several years have passed since the end of employment, the evidence gathered may prove crucial. Many employees are unaware that archived data, such as old emails, file copies or system logs, can still constitute valid evidence in court proceedings. From a procedural perspective, it is important that the evidence not only exists, but also allows for the reconstruction of the actual work pattern and frequency of overtime.

A practical example from Polish case law:

‘An employee may invoke any evidence to prove the validity of their claim, including evidence with less probative value than documents concerning working time, such as personal documents which, prima facie (using factual presumptions – Article 231 of the Code of Civil Procedure), may indicate the number of overtime hours worked.’ (judgment of the Polish Supreme Court, Labour and Social Insurance Chamber of 19 June 2020, ref. no. III PK 151/19)

Summary

Foreigners working in Poland have the same rights to overtime pay as Polish employees. In practice, however, due to language barriers, lack of knowledge of local regulations or fears of losing their job or residence status, foreigners are particularly vulnerable to abuse by employers.

Any exceeding of daily or weekly working time standards constitutes overtime, regardless of whether the excess is minor or significant. Tacit acceptance of work above the norm is also treated as an overtime order.