Do I have to prove that my employer wanted the overtime?

For payment, yes. According to the Federal Labour Court (5 AZR 359/21) you have to show that your employer ordered, approved or tolerated the overtime, or that it was necessary.

Does the duty to record working time change the burden of proof?

No. In 2022 the Federal Labour Court decided that the recording duty does not shift the burden of proof for overtime pay.

Magazine · Records

Who ordered the overtime? What to record besides the hours

In short

If you want overtime paid, in a dispute you have to show two things: that you worked it, and that your employer caused it. According to Germany’s Federal Labour Court there are five ways: expressly ordered, implicitly ordered through too much work, approved afterwards, knowingly tolerated, or simply necessary. A one-line note on the same day helps you more than any memory.

By Fieravend · Heidrich Digital · Published 20 October 2026 · As of 20 October 2026 · Reading time 7 minutes

Time alone is not enough

Sam drives for a delivery service. For months the evenings have been getting later because the routes keep growing. Sam has written everything down: start, end and break every day. When he asks about the extra hours, he hears: “Nobody asked you to do that.”

That was exactly the question before the Federal Labour Court in 2022. A delivery driver wanted 348 overtime hours paid. His times were documented, even by the employer’s own time recording. He still lost. The court said: if you want overtime paid, you have to show not only that you worked it, but also that the employer caused it or is responsible for it. And it is the employee who has to set this out and prove it.

Five ways overtime is attributed to the employer

The judgment describes how to recognise that the employer caused the overtime. Simplified:

Expressly orderedSomeone told you to stay longer. What matters is who, when and what. “Manager, 4:40 pm: please finish the stocktaking.”
Implicitly orderedYou were given so much work that it could not be done in normal hours. Simply being there longer is not enough. It has to be clear why the work did not fit into normal hours.
ApprovedThe employer accepted the hours afterwards, for example by someone signing off your time sheet with the overtime. Merely accepting the sheets is not enough.
ToleratedThe employer knew about the overtime and did nothing to stop it. You have to show what they knew, how and since when.
NecessaryThe overtime was needed to get the work done. A general statement is not enough; it takes concrete details: which route, which job, why no break was possible.

What about the duty to record working time?

Since the 2019 judgment of the Court of Justice of the EU and the Federal Labour Court’s decision of September 2022, employers in Germany must record the start, end and duration of working time, including overtime. Many hoped this would also reverse the burden of proof for overtime.

In the driver’s case, the Federal Labour Court expressly said no. The recording duty protects health, not pay. It does not change who has to prove overtime for payment. If your workplace has no system at all, your own record matters all the more.

What you can note down each day

It sounds like a lot of paperwork. In practice it is one sentence on the days something was different. Good notes already answer the court’s questions:

Who asked?“Ben (shift lead) asked me to cover the late shift, colleague ill.”
What was the reason?“Delivery only arrived at 5:30 pm, had to be put away.”
Did anyone know?“Manager was in the shop until 7 pm and saw me.”
Is there a trace?Email, chat message, rota, key log. A screenshot is enough, kept by you, not in the app.

Do not miss deadlines

Many employment contracts and collective agreements have exclusion periods: claims lapse if you do not raise them in writing within a certain time. How long they are is in your contract or collective agreement. Separately, wage claims in Germany become time-barred after three years, counted from the end of the year in which they arose.

In Austria you can ask your employer once a month to send you your working-time records free of charge (section 26(8) AZG). That is a good moment to put your own numbers next to them.

How Fieravend helps

In Fieravend every block has a note. Anything you add later stays marked as added later, and changes are kept in a log. At the end of the month there is a PDF time sheet with a checksum, which lets you show that a printout matches the data in your app.

What else a record needs is in the guide Proving overtime. If the extra work happens on the laptop in the evening, also read Back on the laptop in the evening: does it count?.

Quick questions

Do I have to prove that my employer wanted the overtime?: For payment, yes. According to the Federal Labour Court (5 AZR 359/21) you have to show that your employer ordered, approved or tolerated the overtime, or that it was necessary.
Does the duty to record working time change the burden of proof?: No. In 2022 the Federal Labour Court decided that the recording duty does not shift the burden of proof for overtime pay.

Sources

All sources checked on 20 October 2026. This article explains things in general and is not legal advice. For questions about your own case, a works council, union, the Chamber of Labour (Austria) or an employment lawyer can help.