sensei
21/08/2016

THE BURDEN OF THE PROOF OF HAVING WORKED EXTRA HOURS
In the General Procedural Law there is a key principle that whoever affirms something must prove it, however, as it is known, the Labor Law breaks with this procedural principle imposing the burden of proof to the employer to prove practically all the conditions of their workers when there is a dispute over them.
An example of the above is regarding the working day where, according to the Federal Labor Law (FLL), the employer must prove the schedule to which his worker is subject. However, according to the FLL of 1970, the obligation was to accredit the working hours, without distinguishing between ordinary and extraordinary, so it could be concluded that the employer was required to accredit both ordinary and extraordinary working hours when there was controversy about this; the Reform of November 2012 determine, in favor of the employer, that in the case of a controversy regarding extraordinary hours, he will only be obliged to accredit the working hours when the dispute is over a duration that does not exceed more than nine hours a week , which are the number of overtime hours to which workers are obliged to work, but if the dispute is about working hours that exceeds 9 extra hours per week, then the worker will be the one that must prove that excess of overtime. This rule, has been recently confirmed by the following jurisprudence by contradiction of thesis:
Era: Tenth Era
Registry: 2011889
Level: Second Division
Type of Thesis: Jurisprudence
Source: Judicial Weekly Gazette of the Federation
Publication: Friday, June 17, 201610:17 h
Nature: (Labor)
Thesis: 2a./J. 55/2016 (10a.)
EXTRAORDINARY HOURS. BURDEN OF PROOF WHEN ITS PAYMENT IS CLAIMED REGARDING THOSE THAT EXCEED 9 TO THE WEEK.
If it is assumed that in article 784 of the Federal Labor Law, in its current text as of December 1, 2012, the premise of exempting the worker from the burden of proof survives when there are other means of knowing the truth of the facts, it can be said that the employer is able to accredit the extraordinary work hours that does not exceed 3 hours a day, or 3 times a week, when controversy arises on this regard, because it has the obligation to keep the documentation of the employment relationship, in accordance with article 804 of the aforementioned law, particularly assistance controls. Consequently, if in the labor trial the worker claims the payment for overtime that exceeds 9 hours a week and the employer generates controversy on that point, in accordance with the aforementioned article 784, section VIII, he must prove that the worker only worked 9 hours a week, because it is understood that this extraordinary working hours (no more than 3 hours a day, or 3 times a week), is a safe practice that is usually habitual and necessary in work relationships, respect to which, the employer has the obligation to register and document, according to the indicated number 804; in which case, the worker must demonstrate having worked more than 9 hours per week.
Conclusion: The employer is obliged to check the worker’s schedule within an ordinary and extraordinary day up to 9 extra hours per week; In case the worker claims to work more than 9 extra hours a week, then he will have to prove this excess.

THE BURDEN OF THE PROOF OF HAVING WORKED EXTRA HOURS
sensei
21/08/2016
In the General Procedural Law there is a key principle that whoever affirms something must prove it, however, as it is known, the Labor Law breaks with this procedural principle imposing the burden of proof to the employer to prove practically all the conditions of their workers when there is a dispute over them.
An example of the above is regarding the working day where, according to the Federal Labor Law (FLL), the employer must prove the schedule to which his worker is subject. However, according to the FLL of 1970, the obligation was to accredit the working hours, without distinguishing between ordinary and extraordinary, so it could be concluded that the employer was required to accredit both ordinary and extraordinary working hours when there was controversy about this; the Reform of November 2012 determine, in favor of the employer, that in the case of a controversy regarding extraordinary hours, he will only be obliged to accredit the working hours when the dispute is over a duration that does not exceed more than nine hours a week , which are the number of overtime hours to which workers are obliged to work, but if the dispute is about working hours that exceeds 9 extra hours per week, then the worker will be the one that must prove that excess of overtime. This rule, has been recently confirmed by the following jurisprudence by contradiction of thesis:
Era: Tenth Era
Registry: 2011889
Level: Second Division
Type of Thesis: Jurisprudence
Source: Judicial Weekly Gazette of the Federation
Publication: Friday, June 17, 201610:17 h
Nature: (Labor)
Thesis: 2a./J. 55/2016 (10a.)
EXTRAORDINARY HOURS. BURDEN OF PROOF WHEN ITS PAYMENT IS CLAIMED REGARDING THOSE THAT EXCEED 9 TO THE WEEK.
If it is assumed that in article 784 of the Federal Labor Law, in its current text as of December 1, 2012, the premise of exempting the worker from the burden of proof survives when there are other means of knowing the truth of the facts, it can be said that the employer is able to accredit the extraordinary work hours that does not exceed 3 hours a day, or 3 times a week, when controversy arises on this regard, because it has the obligation to keep the documentation of the employment relationship, in accordance with article 804 of the aforementioned law, particularly assistance controls. Consequently, if in the labor trial the worker claims the payment for overtime that exceeds 9 hours a week and the employer generates controversy on that point, in accordance with the aforementioned article 784, section VIII, he must prove that the worker only worked 9 hours a week, because it is understood that this extraordinary working hours (no more than 3 hours a day, or 3 times a week), is a safe practice that is usually habitual and necessary in work relationships, respect to which, the employer has the obligation to register and document, according to the indicated number 804; in which case, the worker must demonstrate having worked more than 9 hours per week.
Conclusion: The employer is obliged to check the worker’s schedule within an ordinary and extraordinary day up to 9 extra hours per week; In case the worker claims to work more than 9 extra hours a week, then he will have to prove this excess.