How do I prove my overtime when my employer doesn't record working hours?

Your employer keeps no time clock but won't pay your overtime? I explain what you have to set out, what your employer must put up in response, and how to secure the evidence now.

You worked longer hours for months because the workload demanded it. Now you want to bill for that overtime, and your employer says: “Well, prove it.” There is no time-recording system in the business. Your own notes suddenly look thin. You are right to wonder whether you stand any chance at all in this situation.

In short

Yes, you can enforce overtime claims even without a workplace time-recording system. The burden of proof, however, still rests in principle with you as the employee — it does not automatically shift to the employer. You have to set out specifically on which days you worked from when until when. On top of that, you must show that this additional work was ordered, tolerated, or genuinely necessary to carry out your duties. The Federal Labour Court (Bundesarbeitsgericht) has made clear that the statutory duty to record working time does not alter these rules on the burden of proof. Good documentation of your own is therefore decisive. That is precisely where I support you.

How I help you

• Preparing your existing evidence (emails, calendars, chat histories, witness accounts) in a legally robust way and condensing it into a coherent, watertight account
• Checking whether, and to what extent, your employer should have introduced time recording in the first place, and what that means for you
• Setting out to the employer, in substantiated form, that the overtime was ordered, tolerated, or necessary
• Pursuing your claims out of court and, where necessary, enforcing them before the Labour Court (Arbeitsgericht)
• Securing limitation and forfeiture deadlines under your employment contract or collective agreement in good time

What exactly you have to set out

In an overtime case, the courts apply a two-tier system: what is known as the graduated burden of explanation and proof (abgestufte Darlegungs- und Beweislast). At the first stage, you as the employee must set out specifically on which days, and at what times, you started and finished work. Break times belong here too. Blanket statements such as “I worked about two hours longer almost every day” are not enough. The court needs a comprehensible, itemised account.

If your employer merely denies your account in a blanket way, without any concrete counter-submission, your statements are deemed admitted under section 138(3) of the Code of Civil Procedure (§ 138 Abs. 3 ZPO). As part of its secondary burden of explanation, the employer must explain in detail on which days, and for what reason, it disputes your figures. A bald “that’s not correct” will not do.

You must also show that the overtime was not only worked but was prompted by the employer. That is the case where the employer expressly ordered the additional work. It also applies where the employer tolerated it — that is, knew about it and did not intervene. Subsequent approval counts in the same way. And, finally, it is enough if the additional work was simply necessary to complete the workload assigned to you and you could not have done it any other way.

Why the absence of time recording does not automatically help you

Under the case law of the Federal Labour Court, employers are obliged to introduce a system for recording all working time. In doing so, the Court relies on a corresponding EU-law requirement on the recording of working time. Specifically, the Federal Labour Court derived this duty from section 3(2) no. 1 of the Occupational Health and Safety Act (§ 3 Abs. 2 Nr. 1 ArbSchG). Under that provision, the employer must ensure suitable organisation and provide the resources needed for it.

Many clients conclude from this that, absent a functioning time-recording system, all their claimed overtime must automatically be awarded. That is a mistake. Under the case law of the Federal Labour Court, the duty to record working time does not change how the burden of explanation and proof is allocated in an overtime-pay dispute. The absence of time recording is therefore no blank cheque. In practice, it usually operates as an indication that can weigh in your favour when the evidence is assessed. After all, the employer finds it harder to dispute your account in substantiated terms if it cannot produce any records of its own. Nor, so far, does the statutory clarification of the recording duty — repeatedly debated in political circles — change this allocation of the burden of proof. That holds at least as long as the legislature does not expressly tie it to a burden-of-proof rule of its own.

Which evidence really counts

Without an official time-recording system, you have to obtain your evidence yourself. In practice, what tends to convince a court above all is:

• Your own contemporaneous records: The most important piece of evidence is a handwritten or digital log of hours that you keep continuously — not one reconstructed after the fact from memory.
• Electronic traces: Timestamps on emails, chat messages, or system access (VPN logs, badge entries, PC log-on times) from which the start and end of your work can be inferred.
• Witnesses: Colleagues can confirm that you were present at particular times, or that the workload was objectively impossible to manage without additional work.
• The employer’s instructions: Messages in which superiors set deadlines or assign tasks — plainly achievable only by working overtime.
• Order and project papers: Costings, client timesheets, or project plans. These show how much time was actually required.

The denser and more contemporaneous this documentation is, the harder it becomes for the employer to dispute it in blanket terms.

Deadlines you must not miss

Overtime pay is subject to the standard limitation period of three years, running to the end of the year. Considerably more dangerous, however, are the forfeiture clauses (Ausschlussfristen, also called Verfallklauseln) found in collective or individual employment contracts. These often shorten the time for bringing a claim to three to six months from the date it falls due. Anyone who lets that deadline slip usually loses the claim for good — regardless of whether they could have proved it. So check your employment contract or collective agreement without delay for such a clause. Register your overtime in writing, and in a way you can prove, as soon as it becomes apparent that the employer will not pay voluntarily.

A typical case from practice

Here is what it often looks like in practice: an employee at a business with no time-recording system has regularly worked beyond the contractually agreed hours over a longer period. The reason is frequently that the assigned workload was objectively impossible to manage within normal working hours. When they try to bill for this overtime, the employer denies in blanket terms that work was done to that extent. From email timestamps, calendar entries, and witness statements from colleagues, a day-by-day account can often be reconstructed in such cases. Together with a submission on the objective necessity of the additional work, this forms a solid basis for enforcing the claim. The outcome always depends on the specific circumstances of the individual case.

Common mistakes

• Starting the documentation too late. Anyone who only reconstructs it from memory on leaving loses detail and credibility.
• Relying on a “reversal of the burden of proof”. Many assume that the absence of time recording automatically flips the burden of proof. In court, this regularly leads to blanket, insufficient submissions.
• Never flagging the overtime. Anyone who stays silent for months can hardly demonstrate afterwards that the employer tolerated it.
• Overlooking forfeiture clauses. Even an otherwise valid claim lapses if the contractual deadline for asserting it passes unused.
• Giving only the total number. Without a breakdown by day and time, a submission is not coherent in court, even if the total figure is correct.

Your next step

If a dismissal is also on the horizon for you, or a termination agreement (Aufhebungsvertrag) is sitting in front of you for signature, matters become urgent. Such agreements often contain a settlement clause: with it, any outstanding overtime claims are extinguished the moment you sign. Before you sign, we should look at this together: which claims would you be cutting yourself off from? The page on the termination agreement will help you here.

Frequently asked questions

Does my employer even have to record working hours?

Yes. Under the case law of the Federal Labour Court, every employer is obliged to introduce a system for recording working time. In practice, though, many businesses still do not implement this, or do so only partially, as long as the legislature has not created detailed statutory rules backed by fines.

Is my own handwritten list enough as evidence in court?

A record of your own, kept contemporaneously and continuously, is an admissible and, in practice, often decisive piece of evidence — especially where it is supported by further indications such as email timestamps. The more detailed and plausible it is, the harder it becomes for the employer to dispute it effectively.

What if my manager never expressly ordered the overtime?

Overtime that was tolerated, or that was necessary to complete your tasks, is also payable, provided you can show that the employer knew about it and did nothing, or that the workload could not be managed without the additional work. An express written order is not an essential requirement.

Can my employer simply deny the overtime in blanket terms?

No. Once you set out your working hours specifically, by day and time, the employer must respond just as specifically, stating which figures it disputes and why. A blanket denial is not procedurally sufficient and can lead to your figures being treated as admitted.

What happens to unpaid overtime if I have already resigned or been dismissed?

The claim to overtime pay continues to exist regardless of the end of the employment relationship, but it must be asserted within the limitation period and, above all, within any contractual forfeiture deadlines. Particularly after a dismissal, it is worth quantifying outstanding overtime promptly and in writing.

This article provides general information and is no substitute for legal advice in an individual case. Last updated: 2026-08-29.

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