Working on a rest day: when is double pay due?

Imagine a situation: your work schedule clearly shows your days off, but your employer asks (or even tells) you to come to work. On payday, it turns out that you were not paid twice as much as the Labour Code stipulates, but much less. Can the employer do this?

According to Viktorija Dubovskienė, an attorney at AVOCAD, the legislation is quite strict on this issue - an employee must be paid at least double pay for working on a rest day that is not scheduled in accordance with the work (shift) schedule. "This means that if the timetable is not changed on your initiative, the employer cannot unilaterally decide to pay only the regular rate for working on rest days," the lawyer says. This is where the disputes start: whose will was it to change the working schedule - the employee's or the employer's?

The lawyer notes that the Labour Code stipulates that, where aggregate working time is used, employees shall work according to the approved work/shift schedules, subject to maximum working time requirements. Employees must be notified of the schedules at least 7 days before they enter into force. They may be changed only in exceptional cases beyond the employer's control and must be notified 2 working days in advance.

"The schedules are approved by the employer in agreement with the works council, trade union or collective agreement. They must be drawn up in such a way that working hours do not exceed 52 hours per week," points out Viktorija Dubovskienė.

If an employee works more hours than the norm during the accounting period, this is considered overtime. It shall be paid in addition or, at the employee's request, the excess hours (multiplied by 1.5) may be added to annual leave.

The Supreme Court of Lithuania has noted in its recent case law that although the Labour Code norm regulating payment for work on days off is mandatory, it must be interpreted taking into account its purpose. The legislator, by imposing an obligation on the employer to pay double remuneration for work on days other than those specified in the timetable, sought to protect the employee from unexpected changes in work schedules at the will of the employer.

Under Article 115 of the LC, the employer must draw up and approve work schedules and inform the employees of their entry into force at least seven days in advance. Moreover, schedules may only be amended in exceptional cases beyond the employer's control and the employee must be given at least two working days' notice.

However, according to the lawyer, these obligations on the employer cannot be interpreted as limiting the employee's own right to request a change in the timetable if he or she needs one. If the employee were always paid double wages, the purpose of the law would not be achieved. On the contrary, it would be to the detriment of the worker himself, since the employer, knowing that he would have to pay double, would be unlikely to agree to the worker's request.

Summarising the court's ruling, V. Dubovskienė says that the employer's obligation to pay double pay for working on rest days stems from the legislator's aim to protect the employee's ability to plan his/her working and rest time. Article 144(1) of the Labour Code must be interpreted as meaning that if an employee works on a rest day on the employer's instructions, he or she must be paid double remuneration. However, if the employee himself initiates the change of his working time for his own personal interests, he cannot reasonably expect double payment.

It is also important who has to prove the reason for the rescheduling. If it is established that the worker did not work on the days specified in the timetable, it is for the employer to prove that the change was made at the worker's request and in the worker's interest. However, the mere fact that the employer does not have a realistic opportunity to change the working timetable within the time-limits laid down in the Labour Code is not sufficient to prove that the change was made at his own initiative.

"So, if you work on your days off and your work schedule has been changed at your request, please be aware that under the Labour Code, you must be paid at least double your salary. Your employer cannot unilaterally change your schedule and expect you to pay less for working on your days off," stresses the lawyer. The Court of Cassation has ruled that it is the employer who bears the burden of proving that the work schedule was changed at the initiative of the employee. In the absence of such proof, you are deemed to have worked at the will of the employer and are entitled to double pay. So if you find yourself in a situation where you have worked on your day off, check that your pay has been calculated correctly.

Recent Supreme Court case law - https://www.infolex.lt/tp/2339219