Who Proves Overtime? The Employer’s Increasing Burden of Proof and Record-Keeping in Light of Recent Court of Cassation Decisions

Overtime pay is among the employee receivables most frequently disputed before the labour courts. Although, as a rule, the burden of proving that overtime was worked and its extent lies with the employee, the employer’s statutory record-keeping and documentation obligations, the distinction between signed and unsigned payrolls, the evidential value of electronic records and the procedural rules on the production of documents are increasingly shifting the balance of proof against the employer in practice. Indeed, the decision of the 9th Civil Chamber of the Court of Cassation dated 19 November 2025 (Docket No. 2025/7212, Decision No. 2025/8880) expressly confirms that, where payrolls do not bear the employee’s signature, the employee may prove by any means of evidence, including witness testimony, that more overtime was worked, even if the payroll shows an overtime accrual. In this information note prepared by our team, the fundamental rules on the proof of overtime, recent Court of Cassation case law and the compliance steps to which employers should pay attention are addressed.

1. The Legal Framework of Overtime

Under Article 41 of Labour Law No. 4857, overtime is work exceeding forty-five hours per week under the conditions set out in the Law. Each hour of overtime is paid at the normal hourly rate increased by fifty per cent; where weekly working time is set below forty-five hours by contract, work exceeding the average weekly working time up to forty-five hours constitutes work at additional hours and is paid at a twenty-five per cent premium. Total overtime may not exceed two hundred and seventy hours per year, and the employee’s written consent must be obtained pursuant to the Regulation on Overtime and Work at Additional Hours under the Labour Law (“Regulation”). The employee may, if they so wish, request time off in lieu, to be used within six months, instead of the premium pay.

2. The General Rule: The Burden of Proof Lies with the Employee

As Labour Law contains no specific provision on the proof of overtime, the general rules of evidence apply under Article 6 of Turkish Civil Code No. 4721 and Article 190 of Code of Civil Procedure No. 6100. Accordingly, the burden of proving that overtime was worked, and its extent, lies with the employee who relies on that fact. By contrast, the burden of proving that overtime pay was paid lies with the employer. The Court of Cassation consistently upholds this distinction, emphasising that the employee must prove the existence of the work and the employer must prove that payment was made.

3. The Employer’s Record-Keeping and Documentation Obligation

Regulation requires the employer to prepare a document showing the overtime and additional hours worked by employees and to keep a signed copy in the employee’s personnel file. Likewise, under Article 75 of Labour Law, the employer is obliged to keep documents and records relating to the employee in the personnel file. The Court of Cassation also accepts employer records such as workplace entry and exit logs, timesheets and internal correspondence as primary evidence in proving overtime. Therefore, although in theory the burden of proof lies with the employee, an employer that does not keep regular and reliable records in practice leaves the evidential basis of the dispute largely to the employee’s witnesses.

4. Signed Payrolls and the Reservation Rule

According to settled Court of Cassation case law, payrolls bearing the employee’s signature and containing an overtime accrual show, unless proven to be forged, that the overtime pay for that month has been paid. In that case, the employee may prove that more work was performed than shown on the payroll only by written evidence; however, where a reservation such as “my overtime rights are reserved” has been entered on the payroll, any means of evidence, including witnesses, may be relied upon. By contrast, where a signed payroll contains no overtime accrual at all, the employee may prove overtime by witness testimony. This distinction underlines the importance not only of having payrolls signed but also of ensuring that their content accurately reflects the work actually performed.

5. The Current Approach: Free Proof Against Unsigned Payrolls

The decision of the 9th Civil Chamber of the Court of Cassation dated 19 November 2025 (Docket No. 2025/7212, Decision No. 2025/8880) clarifies the distinction between signed and unsigned payrolls. According to the decision, where the payrolls issued to the employee are unsigned, the employee may prove by any means of evidence, including witness testimony, that more work was actually performed, even if the payroll contains an overtime accrual and that amount has been paid through a bank; the reservation or written-evidence requirement applies only to payrolls bearing the employee’s signature. Nevertheless, where the employee proves the additional work, the amounts shown on the unsigned payroll and paid are set off against the receivable calculated. This approach markedly increases the evidential risk for employers that do not have payrolls signed or do not establish an electronic approval mechanism.

6. Electronic Records and Digital Footprints

With the digitalisation of working life, personnel attendance systems, card access and turnstile records, computer log-in and log-off data, corporate e-mail and messaging records are becoming increasingly decisive in overtime disputes. The Court of Cassation accepts that, where necessary, workplace entry and exit records and computer records should be assessed together with witness statements, including through an on-site examination by a court-appointed expert. Merely sending payrolls by e-mail does not render them signed payrolls; the employee’s secure electronic signature or a verifiable approval record is required. Compliance with Personal Data Protection Law No. 6698 must also be observed in keeping such records.

7. Failure to Produce Records and the Production of Documents

Failure by the employer to produce its records, despite the court requesting them at the employee’s request, may have serious procedural consequences for the employer. Under Article 220 of Code of Civil Procedure, where a party fails to produce a document despite an order to do so, or cannot prove that the document is not in its possession, the judge may, depending on the circumstances, accept the other party’s statement as to the content of the document. The complete absence or incomplete keeping of legally mandatory records weakens the employer’s defence and results in the dispute being resolved on the basis of witness statements.

8. Witness Testimony and Equitable Reduction

Where there is no written evidence, overtime may be proven by witness testimony. The Court of Cassation accepts that a witness may testify only for the period during which they worked together with the claimant, that the statements of witnesses in dispute with the employer must be supported by other evidence, and that statements must be based on concrete facts. A discretionary equitable reduction is applied to overtime receivables calculated on the basis of witness testimony, on the reasoning that it would be contrary to the ordinary course of life for an employee to have worked at the same intensity at all times. However, where the receivable is based on written documents and employer records, this reduction is, as a rule, not applied; this shows that employer records, to the extent accurately kept, are decisive for both parties.

9. The “Overtime Included in Salary” Clause

Provisions in employment contracts stipulating that overtime pay is included in the monthly salary are accepted in Court of Cassation practice as valid only in respect of the statutory annual limit of two hundred and seventy hours; pay for work exceeding that limit must be paid separately. For employees paid the minimum wage, such a provision is not accepted as valid, and overtime is remunerated separately from the first hour. For senior executives, where remuneration is set at a level that also covers overtime and no express overtime instruction has been given by the employer, an overtime claim is, as a rule, not accepted.

10. Assessment and Compliance Steps for Employers

Recent Court of Cassation case law clearly shows that, while the burden of proof in overtime disputes remains on paper with the employee, the decisive element of the outcome is the quality of the records kept by the employer. Employers are advised to have payrolls approved by the employee each month by wet signature, secure electronic signature or a verifiable approval mechanism; to prepare documents showing overtime hours and keep them in the personnel file; to renew annual overtime consents; to keep entry, exit and timesheet records consistent with actual work and in compliance with personal data protection legislation; to review salary-inclusion clauses in employment contracts; and to prepare in advance the set of evidence that may be submitted in a potential dispute. These steps will significantly reduce both the financial risk arising from overtime receivables and the risk of the employee terminating for just cause on the ground of unpaid overtime and claiming severance pay.