Federal Labour Court on the burden of presentation and proof in overtime proceedings

The decision (Urt. v. 04.05.2022, Az: 5 AZR 474/22) is the final point of a series of decisions on the subject of working time recording, which began with the ECJ ruling of 14.05.2019 (Az: C-55/18 ECLI:EU:C:2019:402). Because not only due to this ECJ decision, but also in particular due to two decisions of the Emden Labor Court (cf. only Urt. v. 24.09.2020, Az: 2 Ca 144/20), many companies were subsequently unsettled. Although this uncertainty has now passed, another decision of the Federal Labor Court of September 13, 2022 (Ref.: 1 ABR 22/21) raises many questions among employers.


1. facts

In the proceedings, the parties disputed the remuneration for overtime and also the question of the extent to which this overtime was initiated by the employer.

The plaintiff worked for the defendant company as head of internal sales / assistant to the management. Out of court, he had claimed remuneration from the employer for a total of almost 250 hours of overtime. The plaintiff employee had made a tabular list for each working day, which recorded the individual overtime hours. In addition, he explained why the overtime was necessary for the completion of the tasks incumbent upon him.

The lower courts had partially rejected the claim.


Decision 2

The plaintiff employee was successful in his appeal to the Federal Labor Court. The Federal Labor Court derived the claim of the plaintiff in a scholastic manner. If the remuneration of overtime is neither positively nor negatively regulated in the employment contract, it is governed by § 612, Subsection 1, BGB. Based on this, in the case to be decided there was an objective remuneration expectation of the employee for the remuneration of overtime. In addition to this expectation, the overtime claim requires that the employee has performed work to an extent that exceeds the agreed normal working hours and that the employer also causes the employee to perform overtime or that it is at least attributable to him. The employee's submission had satisfied these requirements. The Regional Labor Court took a different view in part and therefore dismissed the action in part.

In the decision, the Federal Labor Court also points out that the decision of the ECJ (see above) is only relevant for the area of labor protection law under EU law. However, this decision gives neither cause nor legitimation to change the case law of the Federal Labor Court on the burden of presentation and proof in overtime proceedings, contrary to national procedural law principles.


3. conclusion 

The decision is gratifying because it restores legal certainty. In overtime litigation, the general principles continue to apply with regard to the distribution of the burden of presentation and proof. The most recent decision of the Federal Labor Court of 13.09.2022 (see above) will also change this. However, it remains exciting to see what requirements the Federal Labor Court will place on the employer's obligation to record the working hours of its employees. The extent to which trust-based working time and other flexibilization models can still be upheld in the future therefore remains unclear for the time being (at least until the decision of September 13, 2022 is published). We will then revisit the topic and take a closer look at the question of what obligations employers have with regard to the recording of working hours.

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