German Federal Labour Court strengthens employer rights in disputes related to overtime-payment

Since the so-called "Attendance Record Decision" of the ECJ (European Court of Justice) has been delivered on 14.05.2019 (Case No. C-5/18), there has been considerable uncertainty on the part of employers with regard to the burden of proof in an overtime lawsuit. The ECJ had ruled that the entire duration of the daily working time of each employee must be recorded. The Emden Labor Court in Germany had used the decision on several occasions as an opportunity to impose the burden of proof on the employer in an overtime lawsuit if it had not maintained a system for recording working hours. This was clearly in conflict with the principle of civil procedure, according to which the party claiming overtime-payment also has to prove such overtime work has actually been performed.

The BAG has now ruled against the Emden Labor Court with the decisions of May 4, 2022 (5 AZR 359/21; 5 AZR 451/21; 5 AZR 474/21), confirming that the general principles apply. If an employee wants to be paid for overtime, he must prove that he has performed such overtime work and that the employer has ordered or approved it. In the opinion of the BAG, these general principles have not been changed as a result of the aforementioned ruling of the ECJ.

These decisions of the BAG are likely to by highly appreciated by case law and legal literature. After all, the opinion of the Emden Labor Court had already been rightly criticized before. The ECJ's decision had obliged the EU member states alone, but not the individual employer. The latter are not required to introduce a system for recording working time.

Notwithstanding the aforesaid, the German government still did not take a position on the issue of the implementation of the ECJ ruling of May 14, 2019 during the last legislative period. Thus, the legislator leaves the questions of practice unanswered as to whether, when and in what way the obligations under EU law to document working time are to be implemented in operational practice. This is particularly significant in the area of trust-based working time.


SNB will be happy to assist you with any questions you may have on this topic and or other labour law issues.

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