Federal Labor Court finds onus is still on employees to produce evidence of overtime
Notwithstanding the European Court of Justice“s (ECJ) time clock ruling, Germany“s Federal Labor Court – the Bundesarbeitsgericht (BAG) – has made it clear in a judgment from May 4, 2022 that it is still the employee“s responsibility to produce proof of the number of overtime hours worked (case ref.: 5 AZR 359/21).
In its ruling issued on May 14, 2019, the ECJ held that employers are required to set up a system that enables the duration of time worked each day by each worker to be measured (case ref.: C-55/18). We at the commercial law firm MTR Rechtsanwälte can now report, however, that according to the more recent judgment delivered by the Bundesarbeitsgericht, the ECJ“s ruling does not change the fact that it is still the employee“s responsibility to produce evidence of the number of overtime hours worked. The BAG also clarified that an entitlement to claim remuneration only exists if the overtime was mandated – or at least tolerated or subsequently approved – by the employer.
The case before the Federal Labor Court was concerned with a time tracking system being used to record the plaintiff delivery driver“s daily working hours but that was unable to register breaks. An evaluation of the records carried out after the employment relationship had come to an end revealed that the driver had accumulated 348 hours of overtime. He explained that he had given up breaks in order just to be able to complete his daily deliveries and would therefore go on to demand that his employer compensate him for the overtime.
Despite the driver“s initial success before the Fiscal Court of Emden, the Regional Labor Court of Lower Saxony overturned the lower court“s judgment and dismissed the claim on appeal, and this decision would later be upheld by the BAG.
The Bundesarbeitsgericht was clear in stating that the burden of proof with regard to explaining and producing evidence of overtime still lies with the employee. The Court ruled that if the time tracking system did not record the amount of time worked in detail, then the employee had to prove that he did not take breaks. The ECJ ruling was found not to have changed the fact that the burden of proof lies with the employee.
The BAG went on to state that the ECJ“s ruling was about ensuring that there are safeguards in place to protect the health and safety of workers; the ruling is not relevant to questions of employee remuneration and does not change the fact that the burden of proof lies with the employee when it comes to the remuneration of overtime.
Lawyers with experience in the field of labor and employment law can provide counsel.
https://www.mtrlegal.com/en/legal-advice/employment-law.html
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