The employee must demonstrate, in support of an action for remuneration for overtime worked, that he has done work in excess of the normal working hours or has been prepared to do so on the instructions of the employer. Since the employer must pay remuneration only for overtime worked by him, the employee must also state that the employer has expressly or implicitly ordered, tolerated or subsequently approved the overtime worked. These principles, developed by the Federal Labour Court, for the distribution of the burden of presentation and proof for the performance of overtime by the employee and their initiation by the employer, are not changed by the obligation based on EU law to introduce a system for measuring the daily working time worked by the employee. ()BAG, Judgment of 04.05.2022 – 5 AZR 359/21
