Employment Law2026-09-16

My employer doesn't record my working hours — what does that mean for my overtime?

Your employer keeps no record of working time, yet you're building up overtime? This isn't your problem alone — it's a legal breach on your employer's part, with real consequences for your claim.

You regularly get home later than planned. You’ve never clocked in, never used a time-tracking system — your employer simply doesn’t have one. Now you want your overtime paid out or taken as time off. That raises a rather different question from “how do I prove my hours?”: who is responsible for the fact that nothing was recorded at all? And what does that mean for you?

In short

The fact that your employer keeps no record of working time is not a trivial oversight. It is a breach of their own statutory duties. That does not automatically reverse the burden of proof in your overtime claim. But it does shift the odds noticeably in your favour: an employer with no records of their own will find it hard to mount an effective challenge in court to the hours you say you worked. On top of that, you have a sharp lever outside the courtroom. It has nothing to do with the pay dispute itself: the breach of the record-keeping duty is, in its own right, a finable offence.

How I can help

I assess whatever you have — your own notes, emails, calendar entries or what colleagues can attest to — and build it into a court-proof account.
I check whether, and which, limitation clause (a contractual or collective-agreement cut-off period) threatens your claim, and make sure it doesn’t quietly run out.
I write to your employer outside court to demand payment, putting the organisational breach squarely on the table.
I represent you in the overtime claim before the labour court, including the argument over who bears the burden of pleading and proof.

The two duties your employer is breaching — and why the difference matters

There isn’t just one duty to record time; there are two, with different reach. Both apply in your case:

Section 16(2) of the Working Hours Act (ArbZG) requires the employer to record working time that goes beyond the ordinary eight-hour working day (Section 3 ArbZG). That is, in essence, exactly the overtime you’re concerned with. The employer must keep these records for at least two years. In other words: even on the narrowest reading of the law to date, your employer should have documented your extra hours. This isn’t a matter of good practice — the statute expressly requires it.

Alongside this, Section 3(2) no. 1 of the Occupational Safety and Health Act (ArbSchG) places a general duty on the employer to put a suitable organisation in place and to provide the necessary resources. The aim is to safeguard employees’ safety and health. This provision is now read as requiring the employer to introduce a system — one capable of capturing the entire daily working time of every employee, not just the overtime, but the start, end and duration of all working time. The purpose here is not primarily your pay, but compliance with the limits on maximum working hours and rest periods: a maximum of ten hours a day averaged out (Section 3 ArbZG), and at least eleven hours of uninterrupted rest between two working days (Section 5 ArbZG). An employer who records nothing at all simply cannot monitor those limits. If your extra hours regularly stray into that territory, that gives you a further argument.

One point that matters for the current debate: the draft bill published in June 2026 to reform the Working Hours Act is intended to enshrine this duty expressly, and in electronic form, in the statute. It is due to come into force in 2027. It changes nothing about the law as it already stands — that law applies now, just without an express technical specification.

What the breach means for your overtime claim

This is where many employees expect too much: the absence of time records does not automatically reverse the burden of proof in an overtime claim. You still have to set out on which days you worked, and from when to when. You also have to show that this work was ordered, approved or tolerated by the employer, or was necessary to get your tasks done. I’ve set out the groundwork elsewhere in detail — what you need to state, and how to establish your hours point by point: Proving overtime without time records.

The decisive difference in your case: if you plead your working days with specifics — date and number of hours — a blanket denial no longer does the job for your employer. Under Section 138(2) and (3) of the Code of Civil Procedure (ZPO), each party must respond specifically to the other side’s assertions. Facts that are not expressly disputed are treated as admitted. But an employer with no records of their own has no basis on which to put anything concrete against your account. They cannot say, “on that day you finished at 5 pm” — after all, they never recorded when you left. It is precisely this absence of a counter-account that seriously weakens their denial and makes it easier for the labour court to accept your case. The missing records therefore act not as an automatic win, but as an evidential lever you should use deliberately.

What you should do now, in practice

From now on, keep your own contemporaneous records: date, start of work, end of work, break times, and a brief note of what you did. The closer to the day and the more detailed, the more credible in court. In addition, secure whatever already exists anyway: access logs, email timestamps, calendar entries and what colleagues can say. Those colleagues should be able to confirm you were there.

You also have an option that has nothing to do with your individual pay claim but builds pressure: a breach of Section 16(2) ArbZG is, under Section 22(1) no. 9 ArbZG, a regulatory offence that can be penalised with a fine of up to 30,000 euros. A report to the competent occupational safety authority has no direct effect on your own claim. But it may prompt the employer to introduce a system and to back down out of court — particularly where several employees are affected.

An example from practice

An employee at a trades firm with no time recording at all works, month after month, two to three hours longer than his contract provides, because jobs have to be finished at short notice. He resigns and wants his overtime paid out. The employer denies, in blanket terms, that any extra work was done at all. The employee can substantiate specific working times for 47 days. He relies on WhatsApp messages to the boss (“done for the day, ran late again”) and on the accounts of two colleagues. The employer cannot produce any records of his own. As a result, he fails to put anything of substance against those days one by one.

Common mistakes

Many employees wait too long before gathering evidence and rely on their memory. That comes back to bite them when the dispute only escalates months later. Just as common: they miss a cut-off period in their contract or collective agreement — often just three months from when the claim falls due. That period can extinguish the claim before a case is even filed. And some mistake the absence of time records for an automatic free pass: without any account of their own of when they worked, they still lose the case.

Frequently asked questions

Do I have to prove to my employer that they have no time recording?

No, as a rule you don’t have to prove this separately. If your employer disputes what you say, it comes down to their own records. If those are missing, your account is enough. What matters is your own, as specific as possible, statement of the hours you worked.

Can I require my employer to introduce a time-recording system?

Under the law as it currently stands, there is no express, directly enforceable individual right to a particular system. The organisational duty falls in the first instance on the employer and is overseen by the occupational safety authority. In practice, the more effective route is usually your own documentation and, if there is one, the works council.

Does the planned reform of the Working Hours Act change anything for me already?

No. The draft bill from June 2026 is not due to come into force until 2027 and changes nothing about the existing law until then. Your overtime claims continue to be judged under the law as it stands today.

Is a handwritten list of my own enough as evidence in court?

A record you keep contemporaneously and that hangs together internally is an admissible and, in practice, important piece of evidence — especially when it is backed up by further indications such as emails or witnesses. The more detailed it is, and the closer to the working day it was noted, the greater its evidential weight.

What happens if my employer produces records after all, later on?

The court will then examine those like any other evidence and compare them with your account. But lists drawn up after the event, without a contemporaneous origin, often carry less evidential weight than your own notes kept as you went along. Any contradictions between the two accounts are best drawn out deliberately.

Your next step

Are you starting to document your hours now? Or do you already have a dispute with your employer over outstanding overtime? Then don’t wait until a cut-off period cuts your claim short. I’ll assess with you how robust your existing paperwork is. I’ll establish which period is running in your case. And I’ll show you how to use your employer’s organisational breach for your claim. Get in touch with me about this in the Employment law area.

This article provides general information and is no substitute for legal advice in an individual case. Last updated: 2026-09-16.

Christian Czirnich, Rechtsanwalt (attorney at law), Kirchseeon near Munich

Tell me about your overtime and how your working hours are recorded – I will look into it.

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