Overtime lawsuit - what do I need to know?


For overtime work, the employer is obliged to pay the employee the due remuneration and the bonus to the remuneration resulting from the Labor Code. In the event of a dispute with an employer, it is always worth trying to settle the dispute amicably. However, if the out-of-court route is not able to provide a solution, the employee has the option of bringing a claim for payment in court. What should you know about the overtime process? In the article below, you will learn about the overtime lawsuit.

When can we talk about overtime within the meaning of the Labor Code?

The content of the claim for payment of remuneration for overtime should indicate the number of overtime hours worked by the employee for which he has not been adequately paid. For this purpose, it is necessary to precisely define when we are dealing with overtime for which, according to the Labor Code, remuneration and allowance are due.

Pursuant to the Code, work performed in excess of the working time standards applicable to an employee, as well as in excess of the extended daily working time, resulting from the applicable system and working time schedule, constitute overtime work.

However, the Code clearly states that overtime work is allowed only in the event of:

  • the need to conduct a rescue operation in order to protect human life or health, protect property or the environment, or remove a failure;

  • the special needs of the employer.

In the overtime trial, therefore, you will have to show that one of the circumstances outlined above has occurred. In practice, therefore, it will be necessary to prove that the employer has instructed the employee to work overtime.

Demonstrating an employer's formalized instruction can be a problem in practice. In this respect, however, the case law indicates that: “This order has not been formalized, which means that any form (written, oral and implied) has legal meaning. A special case occurs in the case of providing cooperative work integrated into the rhythm of the work of the workplace. In this case, the knowledge of the superiors themselves is treated as consent to work overtime. Recognition of overtime work is not opposed by commissioning it, even when the employer has introduced general order rules (in the work regulations, resolutions, orders), making such work conditional on a written order from the superior or the need for its secondary approval "(Judgment of the Court Supreme - Chamber of Labor and Social Insurance of August 22, 2019, I PK 96/18). The taxpayer must prove to the court that he has been ordered to work overtime. This command need not be permanent. In some cases, it is sufficient to prove that the employer has accepted the employee's overtime.

Overtime pay - how to calculate the required amount?

For overtime work, in addition to the normal remuneration, the employee is entitled to an allowance in the amount of 100% of the remuneration - for work falling at night, on Sundays and holidays that are not working days for the employee, in accordance with the working time schedule and on a non-working day granted to the employee in in exchange for working on a Sunday or public holiday.

In turn, for overtime work falling on any other day, the employee is entitled to an allowance in the amount of 50% of the remuneration.

An allowance in the amount of 100% of remuneration is also payable for each hour of overtime work for exceeding the average weekly standard of working time in the adopted settlement period, unless the excess was due to overtime work, for which the employee is entitled to an overtime allowance under another title.

The remuneration constituting the basis for calculating the allowance covers the employee's remuneration resulting from his personal grade determined by the hourly or monthly rate, and if such a remuneration component has not been separated when determining the remuneration conditions - 60% of the remuneration.

The burden of proof - that is, who has to prove what?

In the process for the payment of overtime pay, the employee will first of all have to prove the exact number of overtime hours worked.In practice, this may turn out to be extremely difficult, because it is the employer's duty to keep a record of the employee's working time, so the employer has the relevant documentation in this regard.

However, the employee has the option to request the court to oblige the employer to submit to the court an excerpt from the records of working time necessary to calculate the number of hours worked by the employee.

The problem may arise if the employer does not keep records of working time, although he is obliged to do so. This situation works to the benefit of the employee, but it does not mean that the employee is no longer obliged to prove the legitimacy of his request.

In this case, the Supreme Court has repeatedly stated that: “An employer who, contrary to the obligation provided for in Art. 94 point 9a of the Labor Code does not keep attendance lists, payrolls or other documentation recording the employee's working time and the remuneration paid to him, he must take into account that he will bear the burden of proving the employee's absence, its size and the remuneration paid "(Judgment of the Supreme Court - Administrative, Labor and Social Insurance Chamber of May 14, 1999, I PKN 62/99).

Therefore, in the event that the employer fails to keep appropriate documentation, the burden of proving certain circumstances is shifted to the employer. However, it should be remembered that: “Despite the lack of records of working time or its unreliability, the employee is entitled to remuneration if, using other evidence, he proves that he has worked a certain number of hours, including overtime. Such evidence is also an opinion prepared by an expert ”(Order of the Supreme Court - Chamber of Labor and Social Insurance of 12 December 2018, I PK 6/18). Therefore, most often, it will be necessary to additionally cite a number of evidence supporting the legitimacy of the employee's request. Often, in order to determine the number of overtime hours, it will be necessary to consult a court expert. Start a free 30-day trial period with no strings attached!

Therefore, it is worth remembering that in the event of the lack of or unreliability of the work time record provided by the employer: "The employee may invoke any evidence proving the legitimacy of his claim, including evidence that is less evident than documents relating to working time, i.e., for example, personal evidence from which prima facie (with the use of factual presumptions - Art. 231 of the Code of Civil Procedure), the number of overtime hours may result ”(Order of the Supreme Court - Chamber of Labor and Social Insurance of 19 June 2020, III PK 151/19). The employee must prove the amount of overtime worked before the court. For this purpose, it may require the employer to provide time records. If the employer does not keep proper documentation or keeps it inaccurate - the employee may prove his arguments with any evidence (including evidence from witnesses' testimonies).

Overtime trial - how much is the lawsuit fee?

In matters relating to labor law, the employer is charged a basic fee only for an appeal, a complaint, a cassation appeal and a complaint for a declaration of non-compliance with the law of a final judgment. However, in cases where the value of the subject of the dispute exceeds the amount of PLN 50,000, the employee and the employer are charged a proportional fee for all letters subject to the fee.

Overtime lawsuit - where and when to file a claim?

An action in a labor law case may be brought either before the court generally competent for the defendant, i.e. according to the seat or place of residence, or before the court in whose jurisdiction the work is or has been performed.

Claims under the employment relationship shall expire after 3 years from the date on which the claim became due. This means that the demand for payment of remuneration and the allowance for overtime worked will be effective only up to 3 years from the date of maturity. In this case, the due date will be the day following the last day of the payment deadline.

It is also worth noting here that the Labor Code contains a separate regulation of limitation periods from those contained in the Civil Code. This in turn means that the amendment of July 9, 2018, changing the limitation periods, will not apply to the limitation period for claims for payment of remuneration and overtime allowance.