Overtime claims rarely fail due to lack of entitlement and almost always due to lack of proof. In a much-discussed 2022 ruling, the Federal Labor Court clarified that the employer's obligation to record working hours does not alter the burden of proof in wage disputes. Anyone seeking overtime pay must still provide details of the days and times they worked, and additionally, demonstrate that the employer ordered, approved, tolerated, or made these hours necessary for the completion of the work.
This second hurdle is the real one. A timesheet alone isn't enough, because mere presence at the workplace doesn't entitle you to payment. What matters is whether the overtime is attributable to the employer. Evidence for this can be secured as long as the employment relationship is ongoing. After a leave of absence, access to email accounts, time tracking systems, and work schedules is usually lost.
We are Smart Employment Law, a law firm with two offices in Hamburg specializing exclusively in employment law. We advise and represent employees, employers, and works councils. Our experience with time tracking systems and company agreements has given us insight into what data companies actually hold and how to access it.
The most important information at a glance
- Attribution required: Overtime hours are compensated if they were ordered, approved, tolerated, or necessary to complete the work.
- Expected compensation: If the contract lacks a provision, overtime is considered to be compensated if there is a corresponding expectation. Courts disagree with this in cases of very high salaries.
- Blanket clauses: A statement like "all overtime is covered by the salary" is ineffective because it is not transparent.
- Burden of proof: You must provide the date, start time, end time, and attribution. The obligation to record time does not reverse the burden of proof.
- Right to information: Under the General Data Protection Regulation (GDPR), you can request a copy of your stored working time data.
- Deadlines: Limitation periods of often three months apply. Anyone who waits a year loses most of their claims.
When overtime must be paid
First and foremost: You are only obligated to work the contractually agreed hours, no more. You are only required to work overtime if there is a legal basis for it, such as a clause in your employment contract, a company agreement, a collective bargaining agreement, or a genuine emergency within the company. Without such a basis, you can refuse overtime without breaching your obligations.
Overtime work gives rise to a claim for compensation if it is attributable to the employer. Case law distinguishes four scenarios. Overtime is considered ordered if explicitly instructed. It is considered approved if the employer subsequently accepts it, for example, by signing off on timesheets. It is considered tolerated if the employer is aware of it and does not intervene for an extended period. It is considered necessary if the assigned workload could not objectively be completed within regular working hours.
If the contract is silent on the matter, the expected remuneration is decisive. This is the norm for simple and medium-level jobs. However, if you earn significantly above the contribution assessment ceiling for pension insurance, the courts assume that overtime is covered by the total compensation. In such cases, it's worth examining variable components; see our articles on this topic. Special payments and bonuses and to Bonus in labor law.
General clauses in the employment contract
Many contracts contain a clause stating that all overtime is covered by the salary. According to case law, such clauses are invalid because you cannot foresee at the time of signing the contract what work you are obligated to do. If the clause is invalid, the statutory regulations apply, and overtime must be paid.
A clause that specifically defines an upper limit, such as stipulating that up to twenty hours per month are covered by the salary, can be valid. Anything beyond that must be compensated separately. Therefore, carefully examine the exact wording before making any demands. Clauses that completely exclude claims for overtime are equally invalid if this results in the minimum wage for the actual hours worked being undercut.
The burden of proof: what courts actually require
The process is carried out in stages. First, you must provide a coherent account of which days you worked or were available for work at your instruction, and from what time. This information must be day-by-day. A total figure such as 180 overtime hours per year is not sufficient.
Then it's up to the employer. They must provide a substantiated denial, meaning they must explain in detail which working hours they consider incorrect and what records they have. A blanket denial is not enough. The third stage concerns attribution, and this is where the case is decided. You must demonstrate that the hours were ordered, approved, tolerated, or necessary.
In practical terms, this means: Structure your presentation on two tracks. Provide a detailed, day-by-day breakdown of the times, and alongside this, documentation of the reasons for them, such as project deadlines, staff shortages, duty rosters, targets, or instructions sent via email. Anyone who only provides one of these elements will lose.
Time tracking: Mandatory without reversal of the burden of proof
Since a ruling by the Federal Labour Court in September 2022, employers have been obligated to implement a system for recording working time. This obligation stems from occupational health and safety law, interpreted in conformity with EU law, and applies regardless of any new statutory regulations.
Such a new regulation is in preparation. In June 2026, the Federal Ministry of Labor presented a draft bill to reform the Working Time Act, which would mandate the electronic recording of the start, end, and duration of daily working hours on the same day and make the distribution of working hours through collective bargaining agreements more flexible. The law has not yet been passed, and a date for its entry into force has not been set. We have discussed further changes in our article on... Labor law changes 2026 compiled.
The practical consequence is crucial. If the employer violates the obligation to record working hours, this does not automatically mean that your claimed hours are considered valid. Your burden of proof remains. Conversely, an existing system is significantly helpful because it contains data that the employer cannot ignore in legal proceedings.
How far time tracking and performance monitoring are allowed to go in the workplace is discussed in the article on... Workplace monitoring.
What evidence really helps
The most valuable data is that which does not originate from you. Think of access and logging data from time tracking systems, shift schedules, cash register reconciliations, logbooks, site reports, ticketing systems, timestamps of emails and files, and witness statements from team members.
A rarely used tool: Under the General Data Protection Regulation (GDPR), you can request information about and a copy of the personal data stored about you. This typically includes recorded working hours and access data. The employer is generally required to respond within one month. You can make this request regardless of your employment status, even after leaving the company.
Keeping your own records remains important. Record your hours daily, not retrospectively at the end of the month, and note not only the times worked but also the reasons for the overtime. Keep these notes private so you can still access them after a period of leave. Also, regularly request confirmation of your time account, as a balance signed off by your employer acts as an acknowledgment in legal proceedings.
Time off in lieu, time account and payout
Whether you receive money or time off depends on the agreement. Without an agreement, the employer owes you payment and cannot force you to take time off in lieu. If a working time account exists, the rules therein apply, such as those regarding caps, compensation periods, and the expiration of credit balances.
However, forfeiture clauses are not permissible without limits. Credit accrued through assigned work cannot simply be forfeited without compensation if you have not been offered realistic alternatives. Also, check for negative hours: these only arise if you were actually obligated to perform the work and failed to do so. Missed work for which the employer is responsible cannot be charged to you as negative hours.
If the employment relationship ends, any existing time credits must be settled in cash, as time off in lieu is no longer possible. Factor this in when calculating your eviction, along with any remaining vacation days. If unfair dismissal proceedings are underway, these payment claims can be negotiated as part of those proceedings; see our page on this topic. Unfair dismissal claim before the labor court.
The limits of the Working Time Act
Regardless of pay, the Working Time Act sets limits. The standard daily working time is eight hours and may be extended to up to ten hours, provided that the average working time over six calendar months or twenty-four weeks does not exceed eight hours. An eleven-hour rest period must be observed after the end of the workday. Breaks are thirty minutes for more than six hours of work and forty-five minutes for more than nine hours.
These limits apply to each employer but are cumulatively dependent on the individual. Anyone with multiple jobs must add up the periods of employment. The implications for compensation claims are explained in the article on... Part-time job and maximum permissible working hours. A separate issue is the remuneration of on-call time, as not all time spent on call constitutes working time in the legal sense; see our article on this topic. Compensation for on-call time.
Violations of the Working Time Act can be prosecuted by the supervisory authority with fines. It is important to note regarding your claim that a violation does not automatically mean that the hours in question must be paid. Conversely, a persistent overtime can be strong evidence that the workload could not be completed within the regular working hours.
Part-time: Bonuses and overtime
Part-time work requires a special consideration. If a policy stipulates overtime pay only after exceeding full-time hours, this can constitute unlawful discrimination against part-time employees. The European Court of Justice and the Federal Labor Court have ruled that part-time workers can claim overtime pay as soon as their individually agreed working hours are exceeded, provided there is no objective justification for different treatment. Because part-time work is predominantly used by women, indirect gender discrimination is also a possibility. Those who have applied for part-time work can find the basic information in the article. Application for part-time work rejected.
Flexible working hours and home office
Trust-based working time means you decide how to distribute your working hours. It does not mean that overtime goes unpaid. The employer relinquishes control over the scheduling of working hours, but not the limitation of the amount. If your actual workload consistently exceeds the agreed working hours because the workload demands it, you are entitled to compensation as usual.
Maximum working hours and rest periods remain unchanged when working from home, and the obligation to record working hours also applies. The practical distinction becomes difficult when work is spread throughout the evening. Therefore, keep a record of when you actually worked and ensure you adhere to the eleven-hour rest period. Anyone still processing emails at 11 p.m. and starting work at 7 a.m. is violating these rules, and this can have repercussions for both you and your employer.
Expecting availability outside of working hours is legally sensitive. If you are required to respond to messages, this could constitute on-call time or working time. Document such requirements, as they will later support both the allocation and the necessity of overtime.
Deadlines: the most common reason for losses
Overtime pay is a monetary claim arising from the employment relationship. Therefore, limitation periods stipulated in the employment contract or collective bargaining agreement apply; three months from the due date is very common. The pay is generally due with the payroll for the month in which the hours were worked. Anyone who submits a claim after two years risks losing almost all of it, even though the claim was valid.
Without a limitation period, the three-year statute of limitations applies from the end of the respective year. Therefore, assert your claims continuously, in writing, specifying the period and number of hours. Any objection to an incorrect invoice should also be made in writing. Verbal promises from your supervisor that the matter will be settled later do not meet any time limit.
Here's how to proceed
- Review the contract: Find the regulations regarding overtime, the flat-rate clause, the exclusion period, and the reference to the collective agreement or company agreement.
- Note daily: Start, end, breaks and the reason for overtime, stored privately.
- Secure external data: Time tracking, duty rosters, ticketing systems, email timestamps and recording of witnesses.
- Have your time account confirmed: Request a signed balance statement regularly.
- Request information: Request a copy of the stored working time data in accordance with data protection law.
- Request within the deadline: Claims must be made in writing, specifying the time period, number of hours and amount, and setting a deadline.
We will explain why specialization makes a difference in these processes in the section below. Advantages of a specialist lawyer for employment law. In practice, the quality of the statement of claim determines whether a claim is taken seriously at the conciliation hearing.
Frequently asked questions about overtime
Secure your hours before they expire
When it comes to overtime, it's not outrage that matters, but the documentation. We review your contract clause, request your stored working time data, and calculate your entitlement on a daily basis. If you have accumulated a credit balance, Describe your case to us. The initial consultation with a brief assessment is free of charge, and we will get back to you promptly.
author
Raphael Lugowski
Raphael Lugowski is a specialist lawyer for employment law and has been advising employees, works councils, and staff councils in all areas of individual and collective employment law since 2016. His areas of expertise include: protection against dismissal, termination agreements, works constitution law, and employment law at the intersection of digitalization and AI.
Go to author profile →