Compensation for time creditson working-time accounts

BAG, judgment dated 23.9.2015 – 5 AZR 767/13

With regard to the burden of evidence, the claim to compensation for working-time credits must be differentiated in terms of whether the hours are shown unconditionally in an employermanaged working-time account, or whether they are based on working-time records prepared by the employee himself.

The case to be decided by the BAG (Federal Labor Court) concerned the payout of a working-time credit. After serving notice of termination to March 31, 2012, the plaintiff requested payment of overtime allegedly worked by her. During the period of employment from June 1, 2007 to August 25, 2008, the defendant kept a working-time account for the plaintiff. This working-time account showed a time credit of 414 hours. However, the defendant did not continue to keep this working-time account up until the ending of the employment relationship on March 31, 2012. Instead, the plaintiff noted her working hours independently. In this record of time worked, the plaintiff noted her regular working hours, the start and end of her working hours and break times, as well as additional and shorter work. The plaintiff’s record showed a further time credit of 643 hours. In her legal action, the plaintiff claimed both the 414 hours as per her working-time account as well as the further 643 hours, and requested the defendant to compensate her financially for the overtime allegedly worked.

The BAG upheld the legal action in part.

Unconditional crediting to the working-time account means recognition

The BAG established that the 414 hours, credited unconditionally to the plaintiff’s working-time account, are to be compensated by the defendant. The entries in the working-time account confirmed the time scope in which the plaintiff had worked her overtime for the defendant. The regular entries in the working-time account did not constitute legal statements by the defendant. Nevertheless, by unconditionally showing credit hours in a working-time account, kept for the individual employee, the employer rendered the balance indisputable. Because this stated that specific working hours had actually been worked with the approval of the employer. As such, the defendant should have set out in detail why the balance – shown unconditionally in the working-time account – is inaccurate. The defendant did not do this.

With self-prepared working-time records: employee bears full burden of evidence

However, at the time of ending of the employment relationship, the plaintiff had not conclusively set out a time credit in excess of the 414 hours. Because – as in every overtime process – the plaintiff is required to set out and, if necessary, to demonstrate that the work has been carried out in a time scope beyond normal working hours, and that overtime worked has been initiated by the defendant or is at least attributable to the latter. The plaintiff did not do this.

The consequence of this is that, in this case, an employee does not fulfil his burden of evidence merely by setting out the days on which he has worked or has been available for work. Rather, he must also illustrate that overtime has been ordered, approved or tolerated by the employer, or was at least necessary for performance of worked owed. The plaintiff’s submission did not satisfy these requirements – accurately set out by the BAG – with regard to the additional 643 hours. The fact that the defendant had deliberately failed to keep a working-time account after November 25, 2008 likewise did not stand in the way of this.

As a result, the BAG therefore makes it clear that the keeping of own working-time records by an employee without demonstrating to what extent this overtime was also necessary or agreed with the employer, is not sufficient for compensation for overtime.

Summary

An employee cannot force the employer to provide compensation for overtime by keeping own working-time records but not submitting these to the employer for signature (approval). Conversely, when keeping a working-time account, an employer must check whether the overtime included in the working-time account corresponds to the actual work performed by the employee, and whether the overtime was also necessary or ordered. Because if the overtime is shown unconditionally in the employee’s working time account, this will subsequently be considered as conceded in any proceedings concerning compensation for overtime.