Amendment of the Judgement of the Emden Labor Court on Time Recording

The Higher Labor Court of Lower Saxony (LAG) had to decide on an appeal against a partial judgment of the Emden Labor Court. A delivery driver had brought an action. He claimed overtime payments for a period of one and a half years on the basis of technical time record-ings created by the employer. It was disputed between the parties whether these records had been created for recording the working time requiring remuneration. The Labor Court upheld the action, to that extent, on the ground that the employer has been obliged to record and control the working times according to an interpretation of Section 618 German Civil Code in compliance with European law. As the employer did not comply with this obligation, the submitted technical records were sufficient as an indication for the hours worked. The employ-er was not able to undermine these indications, e.g. by setting out break times.

The LAG did not share this view (dated May 6, 2021 - 5 Sa 1292/20; preceding ArbG Emden dated November 9, 2020 - 2 Ca 399/18). The judgment of the ECJ dated May 14, 2019 - C-55/18 ("time recording") has no significance for the burden of presentation and proof in the lawsuit concerning overtime hours with regard to the question of order, acceptance, or operation necessity of overtime hours. The ECJ has no competence related to the decision on issues of remuneration. Therefore, the employer has not established the requirements for a claim for overtime payments. The LAG has allowed an appeal to the Federal Labor Court.

(Source: press release of the Higher Labor Court of Lower Saxony)