The employee must provide evidence of overtime

The BAG also confirms its previous line with regard to the ECJ


Working time law is European law and is regulated in Directive 2003/88/EC. In its decision of May 14, 2019 (Az C-55/18), the ECJ ruled that the employer is obliged to record all working hours. The member states are obliged to enact corresponding regulations (see the previous client information ).

In the literature and first-instance case law, it was partly concluded from this that there are easier proofs for employees in the case of overtime. It is not uncommon for workers to submit records at the end of the employment relationship showing how long they worked and when, and claim overtime pay for this.

facts and decision

The plaintiff was employed as a delivery driver by the defendant, which operates a retail business. The plaintiff recorded his working hours by means of technical time recording, whereby only the beginning and end of the daily working hours were recorded, but not the break times. At the end of the employment relationship, the evaluation of the time records showed a positive balance of 348 hours in favor of the plaintiff. He wanted to have this balance paid out. The plaintiff claimed that he worked the entire recorded time. The defendant denied this.

The Emden Labor Court upheld the lawsuit. With reference to the cited ECJ judgment, the burden of proof in the overtime process is modified. The recording of working hours speaks for the plaintiff and the employer must explain and prove when breaks or non-working took place. The LAG Lower Saxony did not follow this. In order to justify an action for compensation for overtime worked, the employee must first demonstrate that he has worked in excess of normal working hours. Secondly, since the employer only has to pay remuneration for the overtime he has arranged, the employee must submit that the employer expressly or implicitly ordered, tolerated or subsequently approved the overtime worked. These principles developed by the Federal Labor Court for distributing the burden of presentation and proof for the work of overtime by the employee and their initiation by the employer are not changed by the obligation based on Union law to introduce a system for measuring the daily working hours worked by the employee. The Federal Labor Court has now confirmed this justification in its decision of May 4, 2022 (Az 5 AZR 359/21).


The clarification of the BAG is to be welcomed. The decision of the ECJ is aimed at the legislator and has no direct impact on an employment relationship.

At the same time, this is only an intermediate step. It remains to be seen how the German legislator will implement the specifications of the ECJ in detail. It is already clear that the recording of working hours needs to be put to the test in almost every company.

dr Konrad Maria Weber, Attorney at Law, Specialist Lawyer for Labor Law
T +49.89.2000568 60
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