The burden of proof in overtime work: the strictness of the Supreme Court

1. The facts

   According to reports by MySolution, the case stems from an appeal by an employee who claimed to have performed hundreds of hours of unpaid overtime across several years of service. The worker had submitted self-drafted summary sheets in court, alongside requests for testimonial evidence intended to confirm his constant presence at the company beyond contractual hours. The dispute progressed through three levels of jurisdiction: following an initial dismissal by the tribunal, the Court of Appeal of Turin upheld the decision, finding the worker's allegations completely generic. The matter concluded before the Supreme Court, where the judges definitively dismissed the appeal. The Supreme Court clarified that the worker cannot merely indicate a lump-sum total of hours, but must specify individual days, start and end times, and the activities performed, thereby making the evidence verifiable by the employer.

2. 

   The legal framework

   1. Art. 2697 of the Civil Code establishes the core principle of the burden of proof, requiring the party claiming a right (the worker) to prove the constituent facts of the claim (the actual performance of overtime hours).
   2. Art. 244 of the Code of Civil Procedure requires that testimonial evidence be submitted through specific factual indications; non-compliance results in the inadmissibility of so-called evaluative or generic evidence chapters.
   3. Art. 2108 of the Civil Code provides for the right to an overtime surcharge, but its application is conditional upon the certainty of the an, namely the actual execution of the work.
   4. Legislative Decree 66/2003 defines maximum working hours, the breach of which may trigger administrative sanctions but does not relieve the worker of the burden of proof in civil proceedings for pay differences.

3. What the case law says

   Supreme Court case law has consolidated the principle of so-called evidentiary rigorism, establishing that proof of overtime work must be provided in a rigorous and detailed manner. Evidence that is limited to an abstract indication of average hours or testimony generically confirming that the employee remained in the office late is inadmissible. The court specified that the judge's ex officio investigatory powers cannot be used to remedy evidentiary deficiencies of a party, nor may one resort to an equitable assessment of damages without prior conclusive proof of performance. Furthermore, mere physical presence on company premises, even if logged by clock-ins, does not constitute automatic proof of actual work unless accompanied by evidence that such stay was directed toward performing work tasks under the employer's direction.

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8. What it teaches professionals

   1. The drafting of claims must include a detailed analytical breakdown of the hours worked, strictly avoiding lump-sum estimates that render the claim vulnerable to inadmissibility.
   2. In statement of defense for the employer, it is essential to contest each individual time slot alleged by the opposing party in detail, thereby preventing the court from exercising ex officio evidentiary powers.
   3. Testimonial evidence must be structured into chapters that are detailed in terms of time and location, eliminating any value judgments or subjective assessments.
   4. It is advisable to recommend that clients implement digital time-tracking systems, as clock-in records, while not self-sufficient on their own, constitute strong prima facie documentary evidence.

References: Articolo 2697 Codice CivileArticolo 244 Codice di Procedura CivileArticolo 2108 Codice CivileD.Lgs. 66/2003

Editorial oversight: Avv. Federico Papa·ICAMUpdated 15 August 2026