If a German employee claims special payment for overtime he has performed, it is the employee who has the burden of proof regarding the following requirements:
- the fact that he actually worked overtime; and
- the fact that the employer explicitly ordered to work overtime or at least has approved or tolerated the performed overtime.
In situations where there is a dispute regarding the payment of overtime, the second requirement is very difficult for the employee to prove. Nevertheless, in its decision dated 10 April 2013 – file number 5 AZR 122/12 – the German Federal Labor Court confirmed these legal principles, and strengthened the position of employers in disputed cases regarding employee overtime.
Where the disputed overtime was not expressly ordered by the employer, but was merely approved or tolerated by the employer, the German Federal Labor Court emphasized that the employee has to prove the employer’s knowledge of each single case of performed overtime and that the employer expressly or impliedly consented to it.
If the employee claims that the overtime order was given by way of implication, e.g., by assigning tasks that could not have been accomplished during regular working time, he has to prove that these tasks could not have been finished without working overtime.
Given these strict requirements and the modern working environment that generally does not have explicit or even written work orders, employees will likely have a very difficult time producing evidence to support a disputed overtime claim in Germany.