international employment law firm alliance L&E Global

Germany: No Changes (yet) to the Burden of Proof in Overtime Proceedings

The Lower Saxony regional labour court recently overturned a controversial ruling from the local labour court in Emden and clarified that the existing principles developed by the Federal Labour Court regarding the burden of proof in overtime proceedings, continue to apply for the time being. Despite the EJC ruling from 2019 on the recording of working time, there is still no legal obligation for German employers to record all working hours of their employees – necessary changes to this principle considering the EJC ruling are a matter for the legislator and not the labour courts.

Two years ago, the ECJ (ruling of 14 May 2019 – C-55/18) caused a stir with regard to working time law by calling for an “objective, reliable and accessible system” for the recording of working time. As for Germany, employers currently only have to record those working hours that exceed the regular daily working time of 8 hours. Hence, the ECJ ruling caused a controversial debate on if and when this practice will have to change. It is generally upon the German legislator to take action by amending the German Working Time Act. However, this has still not happened. In light of this, it remains debated whether employers are already obliged to implement working time recording compliant with the ECJ ruling before such an amendment of local law takes place. This would potentially have considerable impact for German employers, in particular regarding overtime-related litigation.

The debate was further enhanced by rulings of a small local labour court in Emden, which took the ECJ ruling as an occasion to completely change the previously developed burden of proof principles in overtime proceedings. However, the Lower Saxony regional labour court (ruling of 6 May 2021- 5 Sa 1292/20) has now overturned one of these rulings, clarifying that the existing principles remain applicable at least while the Working Time Act has not been changed.

The regional court ruled on the case of a delivery driver, who sued his employer for overtime pay. In the first court instance, the Emden labour court had affirmed the employer’s obligation to record and control working hours, even if this is not (yet) specified as a general rule in the law. The labour court also argued that the ECJ ruling amends the burden of proof in overtime proceedings. The Federal Labour Court so far only affirmed an obligation to pay overtime in cases where the employer ordered or knowingly tolerated overtime and the employee could expect to be paid for such overtime. By means of an interpretation in accordance with European law, the Emden labour court came to the conclusion that already the employer’s possibility to view the working hour recordings of the employee is sufficient to assume that the employer tolerated overtime.  Based on this interpretation, the labour court ruled in favor of the employee.

However, the Lower Saxony regional labour court– as the court of appeal – overturned the ruling from the labour court Emden. Applying the burden of proof rules established by the Federal Labour Court before the ECJ ruling, the court found that the working time records submitted by the employee were not sufficient to justify the claim for overtime pay. Unlike the labour court Emden, the regional court found that the ECJ ruling has no significance for the burden of proof in overtime proceedings regarding the question of the instruction, acceptance or operational necessity of overtime. Therefore, the regional court dismissed the claim, but expressly allowed the further appeal to the Federal Labour Court. It remains to be seen how the Federal Labour Court will interpret the ECJ ruling in the context of overtime litigation.

Key Action Points for Human Resources and In-house Counsel 

Even though the Lower Saxony regional court “corrected” the controversial ruling of the labour court in Emden, German employers must be aware that the local working time law will undergo fundamental changes sooner or later, even though the concrete timing and scope of such changes is currently largely unclear. Based on the ECJ ruling, it is highly likely that employers will be required to establish a system that allows for the recording of all working hours of their employees, in the (near) future. Employers are therefore, advised to start considering these developments in their working time organisation.