France: Case law offers new precise information on evidence of overtime

A decision of the Court of Cassation clarifies the rules of proof of overtime, to take into account the Court of Justice of the European Union’s opinion from 14 May 2019 from a dispute concerning the recording of daily working time and any overtime worked.

Appreciating the scope to be given to this decision in domestic law, the French Supreme Court indicates that it only requires the employee to present the evidence in support of his or her claim of overtime, which must be sufficiently precise as to the unpaid hours that the employee claims to have worked in order to enable the employer to respond usefully by producing his or her own evidence. On the other hand, emphasising the employer’s obligations to monitor the hours of work performed, the court considered that the trial judges must assess the evidence produced by the employee in support of his claim, in the light of that produced by the employer. In concrete terms, once the employee has produced factual elements to a minimum degree of precision, then the judges must weigh the evidence produced by both parties.

Therefore, judges may not focus their analysis solely on the documents produced by the employee, in this case the time accounts he claimed to have made, insofar as this results in placing the burden of proof for overtime exclusively on the employee.

It is also stated that when they accept the existence of overtime, the trial judges have sovereign power to assess, without being required to specify the details of their calculation, the extent of the overtime and the related wage claims.