The judgment had companies across Europe sit up and take notice: Employers must create a reliable system for recording working hours, the European Court of Justice decided on May 14, 2019. The judge’s decision from Luxembourg brought increased organizational requirements to the companies. A second consequence of the verdict – hoped for by some, feared by others – has now been spared them. The Federal Labor Court (BAG) has now decided that everything will remain the same when it comes to paying overtime. This means: In the event of a dispute, the employee must provide proof if he wants to claim overtime.
A delivery driver who had worked between 2014 and 2019 for almost 15 euros an hour had complained. There was a technical record of his working hours, more precisely: it was recorded when he began the working day and when he finished it. The hours in between remained approximate. From this record the driver had calculated a handsome surplus of around 350 hours over a period of two and a half years, plus additional hours to collect the vehicle. Because he never took a break, not even to eat or drink. He did all that on the way. He wanted to be paid for the overtime, and he was successful the first time around. The Emden labor court awarded him almost 6,400 euros.
Like the regional labor court before it, the BAG has now received the verdict again. Because from the point of view of the highest labor court, he himself should have proven his non-stop work and not the employer the opposite.
Overtime affects pay, not hours
The BAG case law on this was very clear in the past. Overtime is only remunerated if the employer has ordered, approved or at least tolerated it – a circumstance that the employee must prove. With the new time recording obligations, this system was a bit in doubt. If the company has to install reliable recording of working hours, why shouldn’t it also bear the burden of proof in relation to overtime?
The BAG did not agree with this idea. This is because the ECJ judgment of 2019 is solely about the application of the Working Time Directive. There, as the name suggests, questions relating to working hours are regulated “in order to ensure the protection of the safety and health of employees”. The settlement of overtime does not affect the working time, but the remuneration. A subtle distinction made by the highest court, which means that employees still have to put the evidence on the table themselves in disputes over overtime.