Federal judge: burden of proof for overtime for employees

2022-05-04T15:01:21.687Z

Federal judge: burden of proof for overtime for employees Created: 05/04/2022, 16:49 An employee holds his chip to a time recording terminal to record working hours. © Sina Schuldt/dpa Thousands of hours of overtime are worked every day behind steering wheels, at workbenches or desks. Their payment is often disputed. The rules for lawsuits remain strict. Erfurt - In the dispute over the paymen

Federal judge: burden of proof for overtime for employees

Created: 05/04/2022, 16:49

An employee holds his chip to a time recording terminal to record working hours.

Thousands of hours of overtime are worked every day behind steering wheels, at workbenches or desks.

Their payment is often disputed.

The rules for lawsuits remain strict.

Erfurt - In the dispute over the payment of overtime, employees in Germany cannot hope for a simplified procedure.

In the case of claims for remuneration, you would still have to demonstrate in the future that the number of overtime hours was necessary, ordered, tolerated or at least subsequently approved by the employer, the Federal Labor Court ruled on Wednesday in a landmark judgment in Erfurt (5 AZR 359/21).

The time-clock judgment of the European Court of Justice (ECJ), which is much discussed in Germany, on the daily recording of working hours does not change the burden of explanation and proof on employees in overtime processes.

The highest German labor judges justified their decision with the ECJ ruling aiming at occupational safety by curbing excessive working hours and not at employees' remuneration claims.

They thus confirmed their previous case law in overtime compensation lawsuits.

With a judgment in May 2019, the European Court of Justice obliged employers to systematically record the full working hours of their employees on a daily basis - almost like with a digital time clock.

A delivery driver from a retail company in Lower Saxony referred to this, claiming that breaks not taken should be paid as overtime with his lawsuit.

He argued that the technical recording of his working hours was sufficient to document overtime.

"A pure coming-and-going detection is a little bit of an argument," said the presiding judge Rüdiger Linck at the hearing.

The plaintiff failed to explain why he had to work overtime and why breaks were not possible.

"The assertion that there was no other way is not enough." Linck pointed out that work is an activity that is bound by instructions.

The man was unsuccessful with his lawsuit, which was about 5223 euros, neither at the Lower Saxony State Labor Court nor at the highest instance.

The case had caused a sensation because the Emden Labor Court, as the first instance, had affirmed an adjustment of the burden of presentation and proof after the time-clock judgment of the ECJ.

Millions of hours of overtime every year

The decision of the Federal Labor Court states that in order to justify a lawsuit for overtime pay, employees must demonstrate that they have “worked in excess of the normal working hours or were prepared to do so on the instructions of the employer”.

Since employers only have to pay remuneration for overtime they have arranged, it should be made clear that this was “expressly or implicitly ordered, tolerated or subsequently approved”.

The lawyer of the defendant trading company also asserted that the time-clock judgment of the ECJ had not yet been implemented into German law.