Work time accounts are the saving accounts of the working world. If an employee collects overtime hours in his account, he can then regularly take said hours as additional time off – depending on the contractual regulations. If there's still a positive balance at the end of the employment, it's settled in cold, hard cash.

That means that time is money - and often leads to problems. If the parties fail to agree on the balance of the account, the employee must prove his claim to compensation for the overtime hours collected in his work time account.

The BAG recently ruled (Ref.: 5 AZR 767/13) that a self-made list isn't enough for this purpose. Even proof of a heavy workload is too vague to underpin a claim to "overtime".

An employee's own record isn't enough – even if the employer neglects to do so in breach of contract

An employee kept her own record because her employer failed to fulfill its contractual obligations and record her working hours. The BAG, however, ruled that this record of her overtime hours is not a sufficient basis to credit said hours to her work time account and underpin a claim for compensation.

An employee's record of the days and hours on which he worked is insufficient proof for overtime hours to be credited. Much like with the "normal" overtime process, he must also demonstrate that this overtime was ordered, approved or authorized by the employer or at least necessary for the completion of the work in question. The BAG did not consider the claimant's proof of her heavy workload and the claimed order by her CEO to "take care of all business matters immediately" to be convincing. Such a vague submission is not sufficient proof of the necessity of the overtime hours worked.

According to the BAG, self-kept records of working hours are insufficient proof for a claim for compensation, even if the employer has neglected to keep a work time account as contractually required. Even if the employer had kept the account current, it would still be the claimant's responsibility to demonstrate an "excess" number of hours to be remunerated.

Trust-based work is no obstacle

The employer is, however, obliged to pay the balance of fully approved hours. This is not affected by any subsequent agreement of trust-based working hours, as was the case in the matter addressed by the BAG ruling. The introduction of trust-based working hours does not interfere with the concept of the work time account, but merely means that the employer waives the need to establish the beginning and end of daily working hours and trusts the employee to complete his or her work even without the employer monitoring the actual hours worked.

If the employer subsequently does not want to pay remuneration for the approved work time account balance, it must demonstrate to what extent the balance has been reduced. If it does not do so, the balance must be settled through time off or payment.

No "forced" overtime hours

Employees will rejoice that employees cannot independently determine their remuneration claims through "unordered" overtime hours in their work time accounts. The employer is therefore not forced to accept overtime hours.

Employers do, however, have to be careful when keeping work time accounts as, once approved, a balance must also be recognized.

For employees, on the other hand, the documentation requirements to make a valid claim for overtime hours via a work time account are high. Any self-kept record must first show the days and hours worked. Such a list must then be signed by the employer or accompanied by saved proof of the necessity of said overtime hours, for example in the form of e-mails from the employer.

Otherwise, the overtime hours worked may not have been wasted – but they may have been worked for free.

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