Overtime: An employee no longer has to prove them, his boss does

When it comes to paying overtime, the employee who claims it does not have to prove the number of hours, it is the employer who bears the burden of proof.

It is still a thorny problem today that the social chamber of the Court of Cassation ruled on last September 15 (D 19-21.607). The magistrates thus had to render a decision concerning a company which contested the overtime worked, while the employee had provided his agendas and copies of emails. The employee then lost on appeal, on the grounds that these elements were not “sufficient to support his request, nor sufficiently precise and justified”.

The judges of the Court of Appeal had relied on a case law still vague which maintains in substance that “in the event of disagreement on the number of hours worked, the employee and his boss must both provide the elements which they have to allow the judge to decide ”.

New jurisprudence

However, the Court of Cassation came to sweep the decision of the Court of Appeal. If the highest court admits that the elements provided by the employee did not constitute “total proof, they were sufficiently precise for the employer to be able to answer them by providing his own supporting documents”.

Above all, the Court of Cassation concludes a new case law which implies that it is incumbent on the employer to “keep at the disposal of the labor inspectorate the documents which make it possible to count the time worked by each person and he can therefore them. provide to the judge. It is not up to the employee to provide perfect proof of the working hours he says he has worked ”. The employee must only provide plausible elements, the burden of proof then weighing on the employer.

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