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Update Employment Law July 2021

Recording of hours worked - burden of proof in litigation on overtime

LAG (State Labor Court) Lower Saxony May 6, 2021 - 5 Sa 1292/20

According to the wording of Section 16 (2) Working Hours Act (ArbZG), all employers are obliged to record hours worked in excess of an employee's normal daily working time, i.e. to document overtime. However, in a judgment in 2019 (May 14, 2019 - C-55/18), the ECJ decided that employers are required to create an "objective, reliable and accessible" system for recording hours worked, and must therefore record all hours worked. The State Labor Court (LAG) Lower Saxony recently commented on this subject matter in connection with remuneration litigation relating to overtime.

The facts of the matter

The Plaintiff had previously worked for the Defendant as a delivery driver and, following the ending of the employment relationship, was demanding remuneration for overtime covering a period of approximately 1.5 years. 

Under the previous case law and for the purpose of substantiating his claim to remuneration for overtime, the Plaintiff is required to demonstrate at least on which days and from when to when he worked or was available on standby on the instructions of the employer. The employee is also required to set out who ordered or tolerated how many hours of overtime, when and in what manner.

During the case to be decided by the LAG however, the Plaintiff made recourse exclusively to technical recordings of his hours worked that had been prepared by the Defendant. The question of whether these recordings also served as documentation of working hours covered by remuneration law had remained a matter of dispute between the parties. 

The Labor Court Emden as previous instance had found in favor of the Plaintiff, stating as reasons among other things that, based on ECJ case law, the Defendant had been directly obliged to create a system for recording hours worked. Given the absence of any such system, the technical recordings were sufficient as indication of the hours worked. The Defendant had been unable to refute this claim through the submission of information concerning break times etc.

Decision of the LAG Lower Saxony

The LAG dismissed the action for remuneration of the overtime. In contrast to the Labor Court Emden, the LAG assumed that the decision of the ECJ had no significance in terms of the burden of producing evidence and proof concerning the question of the ordering, toleration or operational necessity of overtime. The ECJ had no decision-making authority concerning matters of remuneration. Consequently, the Plaintiff had not provided sufficient evidence of the prerequisites for a claim to remuneration for overtime. 

The context

In another case, the Labor Court Emden had previously already decided that the ECJ judgment directly obliged employers to create a system for recording hours worked in Germany. Failure to comply facilitated or even reversed the burden of producing evidence in favor of the employee filing the action. The LAG Lower Saxony now contradicted this view with welcome clarity and is in good company. 

The LAG Rhineland-Palatinate (judgment dated February 19, 2021 - 8 Sa 169/20) is of the same legal opinion as the LAG Lower Saxony, although the LAG Rhineland-Palatinate referred in its reasons to another decision of the Labor Court Emden (February 20, 2020 - 2 Ca 94/19). With regard to the question of an obligation to remunerate overtime, the LAG Rhineland-Palatinate also made reference to the fact that the absence of a time-recording system does not facilitate the burden of producing evidence for the Plaintiff. The sole purpose of the European-law standards to which the Labor Court Emden referred is the public-law monitoring of employee health and safety. This could not be the basis for conclusions concerning the burden of producing evidence in the litigation. 

The approach of the Labor Court Emden was "highly problematical from a constitutional perspective" and inadmissible under both national procedural law and European law. We can only agree to it.

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