Germany: Burden of proof in a court proceeding regarding payment for overtime

In the case at hand, an employee claimed remuneration for overtime work. As a rule, an employee claiming payment for overtime work must demonstrate in a court proceeding that he/she actually worked the overtime as claimed and that this was instructed or tolerated by the employer. In the present case, the employee was employed as a vehicle operator and obliged to work overtime within the framework of the law. His truck was equipped with a digital trip recorder. Times apart from the driving period needed to be manually recorded as “other working time” or “break”. The employee calculated his overtime with his driver card. In his writs submitted to the court, he explained which days he drove, for what period of time and for which tour.

The German Federal Labour Court ruled that the explanations of the employee in his writs were sufficient for demonstrating the overtime worked in a first step. Based on these explanations, the employer was obliged to demonstrate which tasks he assigned to the employee and when and to what extent the employee fulfilled these tasks. In particular, the employer must demonstrate that the assigned tasks could be completed within the employee’s regular working time. If the employer is not able to fulfill these requirements, the court will base its ruling on the data submitted by the employee. Therefore, this judgment will likely make it easier for employees to enforce claims for overtime payment in the future.

For more information on these articles or any other issues involving labour and employment matters in Germany, please contact Tobias Pusch, Partner at Pusch Wahlig Legal ( at
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