Update Employment Law April 2020

Recording of working hours: Emden Labor Court sees employer's duty

In the sensational decision of 14 May 2019 (Case C-55/18),  the ECJ ruled that the Member States must oblige employers to introduce an "objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured”. The decision was largely understood primarily as an appeal to the legislators of the Member States to implement the EU legal requirements. However, it was sometimes discussed whether the decision could have a direct impact on the burden of proof in claims for overtime pay. The Emden Labor Court has now affirmed this in its decision of 20 February 2020 (Ref. 2 Ca 94/19). This is - as far as can be seen - the first domestic German Labor Court ruling to deal with the ECJ's decision. 

Facts of the case

The lawsuit had been filed by a construction worker who, after working for several weeks, claimed compensation from the defendant, his former employer, among other things for allegedly still outstanding remuneration. The plaintiff claimed that he had worked a total of 195.05 hours. However, the defendant had only paid 183 hours.

The plaintiff had made his own handwritten notes ("hourly reports") regarding the hours allegedly worked. The defendant countered this by stating that the actual working time (start and end of work) was recorded in a construction diary. This had been done - insofar undisputed - together with the plaintiff.


The plaintiff was successful before the Emden Labor Court.

In its starting point, the Court bases its decision on the established case law of the Federal Labor Court on the distribution of the burden of proof and demonstration in claims for overtime pay. According to this, the employee must first present a concrete account of the hours worked by him. He has to state "on which days he worked from when to when or was available for work on the employer's instructions". Only then does the employer in turn have the duty to make a substantiated statement and to explain which work he has assigned to the employee and on which days the employee has complied – or not complied – with these instructions, from when to when (so-called secondary burden of proof). If the employer does not substantiate this, the employee's presentation of the facts is deemed to be conceded.

In the opinion of the Emden Labor Court, the plaintiff had initially fulfilled his burden of proof. In contrast, the defendant's submission was not sufficient. The Emden Labor Court ruled that the defendant had violated Article 31 (2) of the EU Charter of Fundamental Rights by not setting up an "objective, reliable and accessible" system for recording working time. The defendant had not been able to provide any records from which it was clear that this (EU law) obligation had been fulfilled. In any case, the evaluations of the construction diary were not considered to be sufficient. It was not, from the outset, a system for the actual recording of working time. Rather, the records were used in accordance with § 34 of the Regulation on Fees for Architects' and Engineers' Services (HOAI) to calculate the fees for the basic services provided by architects and engineers.

Tips for use in practice

As far as can be seen, this is the first Labor Court decision which deals with the much-noticed ECJ decision on the recording of working time. Whether other Labor Courts will follow the view of the Emden Labor Court and regard such an obligation as an ancillary obligation of the employer under the employment contract remains to be seen with some suspense. In any case, the opinion of the Emden Labor Court is not mandatory. Nevertheless, an obligation under public law on the part of the employer to document all working hours performed across all sectors must still be rejected. 

In view of the current exceptional social and in many places also operational situation, the following should be pointed out in conclusion: Irrespective of the risk of possible claims for overtime pay, employers should pay particular attention to sound documentation of working hours when claiming short-time working benefits. This applies in any case if the working time is not reduced to zero. The employment agencies are instructed in the course of their final audit to request working time documentation from the employer in order to determine the extent of the loss of working hours. If these do not exist and therefore cannot be submitted, it is likely that it will not be possible to provide (retrospective) evidence of the actual loss of working hours and thus ultimately of the conditions for short-time working compensation.

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