Burden of presentation and proof in the overtime pay process
If an employee demands remuneration for overtime worked, he must, on the one hand, explain and prove to court that the work he performed exceeded his contractually agreed “normal working hours” or that he had to be available to work beyond these “normal working hours” on the instructions of the employer. On the other hand, he must explain and prove that this overtime was initiated by the employer, i.e. the employer ordered, tolerated or at least subsequently approved the overtime worked or that the assigned work could not be completed in the contractually agreed working hours. These principles have been developed over time through case law.
The EU law requirements regarding the employer's obligation to record working hours do not change these principles. This now decided that Federal Labor Court in his Judgment from May 4th, 2022 (5AZR 359/21).
Facts:
The plaintiff was employed as a delivery driver for the defendant, which runs a retail company. The plaintiff's working hours were recorded using a technical time recording system, which, however, only recorded the start and end of daily working hours, but not break times. The evaluations of the time recording system then showed a positive balance of 348 hours at the end of the employment relationship. With his lawsuit, the plaintiff demanded compensation for overtime in the amount of €5,222.67. He claimed that he worked the entire recorded time and was not able to take breaks, otherwise he would not have been able to process the delivery orders. The defendant denied this.
According to the principles developed by the BAG, the plaintiff would have been unsuccessful with this lawsuit because he could not provide any evidence that he actually worked the claimed number of overtime hours. Simply claiming that he did not take any breaks, without stating in more detail what work he wanted to have done during this time and to what extent this was caused by the employer, is not sufficient.
And yet: the lawsuit was initially upheld in the first instance – citing EU law requirements.
Judgment of the Emden Labor Court
The Emden Labor Court (judgment of November 9th, 2020 - Ref. 2 Ca 399/18) was of the opinion that the judgment of the European Court of Justice of May 14th, 2019 (Case C-55/18), which states that the member states must oblige employers to record the working hours of their employees reliably and transparently, leads to the principles of the burden of presentation and proof in the overtime process having to be adjusted to the detriment of the employers and the welfare and welfare standards standardized in Section 618 of the German Civil Code (BGB). The employer's duty of protection must also be interpreted in accordance with EU law in the context of an overtime payment process. Accordingly, Section 618 of the German Civil Code (BGB) results in the employer's obligation to record and control the employee's working hours. If an employer fails to comply with this obligation, this will result in a reversal of the burden of proof to the employer's detriment. The court at first instance therefore assumed that the employee met his burden of proof if he presented the number of overtime hours worked and thus conclusively substantiated the lawsuit. The employer is no longer required to have positive knowledge of the overtime worked, as the employer could have obtained this knowledge at any time by introducing a working time recording system.
This view clearly contradicted the principles of established case law on the distribution of the burden of presentation and proof in the overtime compensation process.
However, it didn't stop there: In the second instance, the lawsuit - with the exception of overtime already billed by the defendant - was dismissed by the LAG Lower Saxony (judgment of May 6, 2021 - Ref. 5 Sa 1292/20).
BAG decision:
The plaintiff's subsequent appeal was also unsuccessful.
The BAG stated that there was no need to deviate from the principles of the burden of presentation and proof, even in light of the judgment of the European Court of Justice. Particular attention must be paid to the so-called principle of limited individual authorization. This means that the jurisprudence of the European Court of Justice can relate to questions of occupational safety and health of employees - which also includes, for example, the organization of working hours (cf. the European Working Time Directive RL 2003/88/EC) - but not to Compensation aspects.
Since it is at the Compensation However, since overtime is not a question of occupational health and safety, but only concerns the question of remuneration, these provisions cannot have any impact on the national principles on the burden of presentation and proof in the overtime remuneration process.
It was therefore assumed in the decision of the LAG and also the BAG that the plaintiff could not demonstrate sufficiently specifically that it was necessary to work without breaks in order to be able to process the deliveries. The mere general assertion that he did not take any breaks, without going into more detail about the time spent on work, is - as already explained above - not sufficient.
Conclusion:
Since the BAG has now decided that the European Court of Justice's ruling on working time recording cannot have any impact on the principles of the burden of presentation and proof in the overtime pay process, everything remains the same, which should at least provide relief on the employer side.
Jana Blancke, lawyer
