Court rules that German companies can REFUSE to pay you overtime until YOU provide evidence of overtime!

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If you want to be paid for overtime, YOU must prove that you worked it – as well as that it was ordered or approved by the employer. The Federal Labor Court in Germany has decided. A ruling by the European Court of Justice, which in 2019 required companies to reliably record the working hours of their employees, did not change this either.

Employees in Germany have to prove they have worked overtime. Employers only have to pay overtime if they have ordered or approved it. Employees must prove this, as well as that they have worked overtime. The Federal Labor Court ruled that the ECJ ruling on the obligation to record working hours does not affect this.

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The ECJ judgment did not have any impact

A majority of employees in Germany would love to supplement their salary with overtime – companies only want to pay them if they have ordered, approved or at least approved of the overtime. 

The issue at state was: Who bears the burden of proof for the performance of overtime? 

Difference between overtime and extra work

From a labor law perspective, a conceptual distinction must be made between overtime and extra work:

Overtime: Overtime is the work that employees perform beyond their individually applicable working hours that are specified for them in the collective bargaining agreement, company agreement or employment contract.

Extra work: Extra work is when employees exceed the general statutory working time limits. For example, according to the Working Hours Act, the working time of eight hours per working day applies in principle – even if exceptions to this are possible, for example through a collective agreement. Part-time employees can therefore work overtime without it being overtime work that is relevant under the Working Hours Act.

About the  ECJ judgment of May 14, 2019, on the recording of working hours, it was not certain whether employees continue to bear the burden of presentation and proof of overtime or whether employers have to recognize the employees’ overtime claims in general if they have not introduced a time recording system. The Emden Labor Court surprisingly represented this in several proceedings.

You can’t work through your lunch break and claim overtime!

Delivery driver demands overtime pay – The worker was employed as a delivery driver for a retail company. The employer recorded the daily working time at the beginning and end of the working day with the help of a technical time recorder. Break times were not recorded separately. At the end of the employment relationship in 2019, the driver then claimed overtime and demanded compensation of around 5,000 euros. 

The employer refused to pay because various hours for meal breaks and smoking breaks had to be deducted from the positive balance of the working hours. According to the employer’s calculations, the driver did not work any overtime overall. The employee, on the other hand, asserted that he had worked the whole time through.   

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Federal Labor Court (Bundesarbeitsgericht): ECJ ruling on time recording does not change the burden of proof for overtime

The Federal Labor Court ruled that the employer was not obliged to pay the driver the required overtime pay. It thus confirmed the judgment of the State Labor Court (Landesarbeitsgerichts) Lower Saxony. The court correctly recognized that the previous principles of the burden of explanation and proof should not be deviated from, even against the background of the said ECJ decision on the obligation to record working hours. According to this, the employee must continue to explain and prove the employer’s initiation and allocation of overtime accordingly.

Does overtime have to be paid?

The question of remuneration for overtime must be distinguished from the obligation to work overtime. It should be noted, however, that there is no legal principle that overtime must always be remunerated. Time off in lieu can also be granted if agreed accordingly.

The ECJ is not allowed to rule on the issue of overtime pay

In its justification, the Federal Labor Court (BAG) pointed out that the so-called “time clock judgment” was issued by the ECJ to subject the health protection of employees intended by the EU Charter of Fundamental Rights and the Working Time Directive to control by authorities and courts. 

According to established ECJ case law, these provisions were limited to regulating aspects of the organization of working time. On the other hand, they do not apply to the question of remuneration, the Federal Labor Court (BAG) determined. The obligation for employers under EU law to measure daily working hours does not affect the principles of the distribution of the burden of proof in the overtime payment process.

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A blanket statement of overtime is not sufficient

Like the State Labor Court (LAG) Lower Saxony, the Federal Labor Court (BAG) also concluded that the employee had not explained in a specific case that he had to work without breaks. Whether the assertion that he had no breaks was correct could remain an open question, since the blanket statement without a more detailed description of the scope of the activities was not sufficient.

Ordering overtime: The employer cannot do this unilaterally

Employers cannot unilaterally order overtime. In particular, the employer’s general right to issue instructions is not sufficient to unilaterally oblige an employee to work overtime. The employer’s right to issue instructions is limited to determining in detail the duties of the employee, which are only outlined in the employment contract. 

However, it does not establish any contractual rights. In the absence of an express provision, the employee is therefore generally not obliged to work overtime. This means that a joint agreement is usually required in which the employer and employee agree on the performance of overtime.

Obligation to record time remains

This does not change anything in the fundamental obligation of the employer to record working hours by the ECJ. It remains to be seen how the German legislature will shape this. However, employers are already advised to consider which time recording system makes sense and can be implemented for their own company.


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