Burden of proof for overtime hours
It is not uncommon for employers and employees to dispute (after the employment relationship has ended) about payment for overtime hours worked. This kind of dispute frequently ends in a settlement to prevent costly legal proceedings. In this context, it is important for employers to correctly estimate the risk of litigation.
Once again, the principles developed in higher court rulings have been adopted and further developed in lower court jurisprudence.
In its judgment of 5 November 2019, the District Labour Court of Mecklenburg-Western Pomerania was presented with the following circumstances:
A former employee requested payment from her employer for a total of 276.25 hours worked after the employment relationship ended. In this context, she submitted a printed copy of the electronic time recording system with the heading "Overtime hours – paid time off account".
During the plaintiff's employment relationship, her working hours were stipulated for fixed times. The employee was responsible for managing the time recording system. Because she had administrator access, she could also add hours after the fact.
In the past, when the managing director found the employee in the office at 6:00 AM, he had already informed her that her working hours did not start until 7:30 AM.
The District Labour Court first clarified that only regular agreed working hours must be remunerated insofar as the employee's work is stipulated to a specific extent. Remuneration is therefore only due for overtime hours if the employer ordered the performance of these overtime hours.
In principle, the burden of proof lies with the employee to demonstrate that the overtime hours were actually performed and that the employer requested their performance. To satisfy this burden of proof, it is sufficient for the employee to submit a detailed account of when the work was performed, specifying the days as well as starting and ending times. The employee must also state who ordered the overtime hours, the way in which they were ordered and the number of hours.
Here it should be noted that a tacit order of overtime hours can also be assumed if the amount of work assigned to the employee could only be managed by working overtime hours.
Tolerance of overtime hours, that is, knowledge and acceptance on the part of the employer, can also replace an explicit order.
The same applies if the employer approves the overtime hours, that is, if the employer authorises them after the fact. The employer would have to state that he agrees to the performance of overtime hours that have already been worked. Acceptance without objection is not sufficient here.
If the employee's working hours are recorded electronically and signed by the employer, the employee can satisfy the burden of proof simply by submitting this evidence in court. The same applies if the employer maintains working time accounts and earmarks a certain number of credit hours without reservation. This is akin to a statement that the hours were worked with the employer's approval.
If the employer subsequently wishes to dispute the balance resulting from a working time account, it is the employer's responsibility to demonstrate why the indicated balance is inaccurate or reduced, specifying the particular circumstances.
However, these principles do not apply if the employee uses a record of working hours that he prepared himself in order to substantiate his claims. In this case, the employee is required to demonstrate the factual circumstances underlying the balance in detail.
The District Labour Court left open the question as to whether electronic recording and calculation of working hours can be considered a working time account. In any case, an uncontested balance or other confirmation of working times by a supervisor was lacking in the present case. Accordingly, the District Labour Court found that the submitted computer printouts were exclusively based on the employee's own statements. The employer did not take ownership of these records in any way.
Notes for practice
Based on the current decision of the District Labour Court, working time records can be considered as prepared by the employee even if they are created using a system that is provided by the employer. The decisive factor here is that employees record their hours themselves.
The decision also clarifies once again that employers should not "carelessly" sign off or otherwise approve working time records unless they have been reviewed in detail. Such conduct significantly complicates the employer's burden of proof in litigation concerning overtime hours.