Overtime: a doubtful time record does not reverse the burden of proof

A heavy workload is not a timesheet. The Federal Supreme Court said so in judgment 4A_58/2026 of 18 August 2026, on overtime in Switzerland under a private-law contract in the canton of Vaud. The employee proves the number claimed. If that number can no longer be established exactly, the court estimates it. The estimate does not award the list prepared for the proceedings.

What the contract provided

The employee was hired on 15 February 2016 as an engineer, for 42 hours a week. A contract of 31 October 2018 promoted him to head of production and industrialisation, at a gross annual salary of CHF 110,000, still for 42 hours. From 1 January 2021 an amendment placed him in a production management role, at CHF 122,000 gross.

The 2018 overtime clause said the role might require extra hours, and that the employee consented where they were necessary and good faith allowed them to be asked of him. At the employer's choice, those hours could be compensated by leave of equal length, one hour for one hour, or paid without a supplement.

Article 321c paragraph 1 of the Code of Obligations requires that extra work when circumstances demand it, the employee can do it, and good faith allows it to be asked. With the employee's agreement, the employer may compensate the hours by leave of at least the same length, granted within an appropriate period (para. 2). Hours not compensated by leave are paid as ordinary salary plus at least one quarter, unless a written agreement, a standard employment contract or a collective agreement provides otherwise (para. 3). Before the Federal Supreme Court the dispute was only about the number of hours and the period to be paid. The judgment does not recalculate the supplement.

The employee proves the number

Article 8 of the Civil Code states the rule: each party proves the facts it alleges in order to derive a right. For overtime, that burden is the employee's. As far as can reasonably be required, the employee must allege and prove the circumstances that allow the number to be assessed. The conclusion that the hours were actually worked to the extent alleged must impose itself on the court with a certain force. The Federal Supreme Court recalls this at consideration 8.2.

Arriving early, leaving late or sending emails in the evening shows that extra work was done. It does not prove the total claimed.

When the exact number cannot be shown

Article 42 paragraph 2 allows the court to determine equitably a loss whose exact amount cannot be established. Case law applies it by analogy to the number of overtime hours when that number can no longer be proved exactly. The estimate does not reverse the burden of proof. It does not release the employee from providing the facts that can still be required.

A doubtful system does not award the employee's spreadsheet

From August 2017 the employer used a declarative system. Each person entered their hours, and a supervisor approved them. The employee's records were checked until February 2018. From March 2018 the supervisor rarely approved them. If the employee entered nothing, the screen stayed on a standard schedule. The extracts showed 0 hours for January, February and March 2020, and for September 2021.

The Vaud courts treated this system as doubtful. The employee did not challenge that assessment. His own spreadsheet was not used either. It had been prepared for the proceedings, and it did not match the hours he himself had entered in the system. The Federal Supreme Court confirms that the only course left was an estimate, by analogous application of article 42 paragraph 2 (considerations 5.2 and 8.3).

An unusable employer record therefore does not award every hour that a later list adds up.

Three hours, in this case

From January 2020 to June 2021 the estimate upheld was three overtime hours a week, that is CHF 12,370.30 gross. The Federal Supreme Court does not set that figure again. It is bound by the facts found in the canton. It checks that the estimate does not breach federal law.

The courts relied on facts that were established. At least once a week the employee ate lunch during a meeting set by his supervisor. Work emails had been sent after 8 p.m., at weekends and during holidays: answering them took minutes. The employee had received his full salary, which was meant to pay for 42 hours. In an email of 15 June 2020 he wrote that he had had to go beyond the 42 hours, as usual. The cantonal court read that as meaning he had not exceeded that figure by much. These elements prove that overtime was worked. They do not prove the much larger volume that was claimed.

Three hours a week are not a general rule. Another file, with other evidence, calls for another estimate. The estimate must rest on concrete indications.

What had already been paid

Between May 2018 and January 2020 the employer paid four amounts: CHF 3,350.90 for 68.08 hours, CHF 2,752.85 for 55.93 hours, CHF 3,535.95 for 71.84 hours, and CHF 9,166.65 for 178.43 hours. In 2019 the employee also took ten days of leave as compensation.

He argued that these payments did not settle everything, and that the payslips did not mention a full and final settlement. The Federal Supreme Court holds that those words are not required in order to treat the period as already compensated. If in January 2020 more than 600 hours had really still been open, the employee should have said so when 178.43 hours were paid. He did not (consideration 9.2).

The same judgment recalls that overtime must in principle be reported in good time, so that the employer can organise and so that the extra work can be approved. Otherwise the claim for pay can be lost. Reporting the hours, stating their number, and later suing for payment are not the same thing. Here, the lack of reaction to a substantial payment counted for the period before January 2020.

After prior approval was required

On 7 July 2021 human resources wrote to the employee that he had recorded 22.18 overtime hours in June, and that any overtime had to have been approved in advance and expressly by his manager. Otherwise it was not authorised.

The Federal Supreme Court notes an ambiguous stance: that reminder sat alongside a manager who asked a great deal of the employee. In this case the ambiguity does not open a further payment. In October 2021 the employer paid CHF 3,341 as the balance of overtime linked to the company's acquisition. That payment closes the door to a supplement said to be due because hours had been imposed tacitly (consideration 9.3).

The judgment does not say that an hour worked without prior approval is never due. It says that, in these circumstances, the October 2021 payment had already covered the acquisition period.

Short-time work does not change the proof

During the Covid period the employer received short-time work compensation. Full-time employees were to work only 31 hours a week. On 15 June 2020 the employee wrote that he had had to exceed those 31 hours and the contractual 42. He did not dispute that he had received the full salary provided for 42 hours. Whether the reduction had started in January or March 2020 did not affect the outcome (consideration 4.1). The judgment does not decide whether the short-time compensation was accounted for correctly.

What this judgment does not decide

The appeal is dismissed insofar as it is admissible. The judgment concerns overtime under article 321c in a private-law contract. It does not decide overtime under the Labour Act, meaning work beyond the statutory maximum of 45 or 50 hours depending on the activity, whose compensation cannot be set aside by the same written agreement. That Act does not apply to every role. Public-sector staff and some collective agreements follow other rules.

The judgment does not say how to rebuild whole years from emails. It does not say that a poorly kept system excuses the employee from any figure. The contract, the entries, the payslips and the writings sent at the time remain the file.

Common questions

• Who must prove overtime in Switzerland? The employee. The number alleged has to be convincing, not merely a showing that the person worked a lot.
• If the employer's timekeeping is doubtful, are all the hours on the employee's spreadsheet due? No. Both records can be set aside. The court then estimates the number.
• Are three hours a week the rule? No. That is the estimate in this case, for January 2020 to June 2021.
• Must the hours be reported when they are worked? In principle yes, in good time. In this case, silence when the January 2020 payment was made counted against a balance of several hundred hours.
• What should be gathered before asking the question? The contract, the hours entered, the personal spreadsheet, the payslips, the emails and the meeting calendar.

Avocados AI's Basic plan costs CHF 4.99 a month, the price of a coffee. It is there to organise these papers and prepare the questions. It does not replace a lawyer's review of the file. The guide to Swiss employment law sets out the frame of the contract, working time and salary.

Sources

Federal Supreme Court, judgment 4A_58/2026 of 18 August 2026, First Civil Law Division. Code of Obligations, articles 42 and 321c, text as of 1 October 2026. Civil Code, article 8. Judgments cited by the Federal Supreme Court: 4A_533/2024 of 24 June 2025, 4A_662/2024 of 8 April 2025, 4A_133/2021 of 26 October 2021.