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The burden of proof for overtime hours is shared

According to French law, the legal working hours for full-time employees are in principle 35 hours per week (Article L.3121-27 of the French Labour Code).

Article L.3121-36 of the French Labour Code states that in the absence of a collective agreement, any extra hour worked over 35 hours per week must be considered as overtime and paid as such (i.e. with a 25% increase for the first eight hours, then a 50% increase).

In case of litigation regarding the payment of overtime hours, the employee must produce documents to prove that they have worked (unpaid) overtime. If the evidence provided by the employee is sufficiently precise, the employer must respond by producing documents proving that the employee’s working time was monitored (and that no overtime was performed).

Nevertheless, this cannot lead to the employee bearing the burden of proof alone.

The French Supreme Court has once again made this principle clear in two recent decisions dated May 10, 2023 (n°21-21.788) and June 1, 2023 (n°21-25.349).

In both decisions, the Court of Appeal had ruled that the documents provided by the employee were not sufficiently precise. In particular, it had noted that the timesheets communicated by the employee did not show the hours worked per day and per week, and that the certificates of colleagues produced by the employee were too general and vague.

The employees’ claims for overtime payment were thus rejected by the Court of Appeal.

However, the French Supreme Court overruled the Court of Appeal’s decisions, holding that the burden of proof should not lie solely with the employee. It also noted that the employer did not produce any evidence that working hours were monitored. The French Supreme Court therefore considered that the employer should be ordered to pay for overtime.

Employers should therefore be very careful in case of disputes relating to the payment of overtime hours, given that the burden of proof is shared and does not rest only with the employee.