Employer has to Pay for Overtime Without Active Notice.

On May 14, 2019, the Court of Justice of the European Union (CJEUEU) decided that employers have to record their employees’ working hours. To do so, they must implement an “objective, reliable and accessible system,” stated the CJEU (Ref.: C-55/18).

Although a corresponding EU directive has not yet been transposed into German law, Labor Court Emden already considers employers to be under such an obligation. However, Labor Court Emden already considers employers to be under an obligation. This was already made clear by the court in its decision dated February 20, 2020 (Ref.: 2 Ca 94/14; see further our related blog post). In this ruling, the court determined that the employer has an obligation to set up an objective system for logging working hours.

Now, Labor Court Emden has reinforced this opinion once again in its judgment dated September 24, 2020 (Ref.: 2 Ca 144/20). This time it was about the remuneration of overtime.

Remuneration of 1,000 Overtime Hours

In this specific case, a sales assistant had terminated her employment. She claimed compensation for about 1,000 hours of overtime. In total, she claimed approximately EUR 20,000. She had recorded her working hours using software provided by the employer.

The employer saw this differently, reasoning that he had not ordered the overtime. The plaintiff had been employed for working hours based on a relationship of trust. She could have offset potential overtime herself. She did not do this and also did not report the overtime. Although her working hours were recorded in the software, they were not checked. This was the employer’s argument.

Labor Court Emden Rules in Favor of Employee

The Labor Court Emden granted the claim. Consequently, the plaintiff was entitled to the remuneration for overtime in the amount of approximately EUR 20,000.

The Labor Court Emden stated that, following the CJEU ruling on May 14, 2019 (C-55/18), the method of evidence disclosure in overtime proceedings has been modified. The – active – knowledge previously stipulated by the Federal Labor Court as a prerequisite for an obligation to accept and remunerate the performance of any overtime is not necessary if the employer could have obtained knowledge of the working hours by monitoring the record of working hours. The employer is obliged to implement, supervise and inspect the recording of working hours. This is not changed by the agreement of so-called working hours based on a relationship of trust.

Simplified Burden of Proof for Employees

According to the court, it is sufficient for the plaintiff to submit evidence of which days she worked, and from what time to what time. This was satisfied by the recording of the working hours. The performance of the overtime was also attributable to the employer, who at least condoned it. This is because the employer could have obtained knowledge of the working hours by monitoring the recording of working hours, which the employer would have been obligated to do. The court stated that such a positive possibility is sufficient.

Impacts of the CJEU’ s Decision dated May 14, 2019 (C-55/18)

Furthermore, the court stated that national legal norms are to be interpreted by labor courts in a way which complies with the CJEU’s requirements on the recording of working hours. The argument that the above-mentioned decision of the CJEU cannot have any consequences for questions of remuneration law because the European Union has no regulatory competence in questions of remuneration law cannot be accepted. Records of working time, which (at least primarily) are intended to document and monitor compliance with legal regulations on working time, can also take on significance for remuneration law. According to Labor Court Emden, the decision of the CJEU must also be applied to past cases. Here, the protection of legitimate expectations is not to be granted.