Filing a Lawsuit for Unpaid Overtime: Burden of Proof and Process

Introduction to Overtime Litigation

Unpaid overtime is the most common cause of labor disputes in Turkey. While the law mandates payment, employers often fail to record hours correctly or force “off-the-clock” work.

To recover these unpaid wages, workers must file a Worker Receivables Lawsuit (İşçi Alacakları Davası). Success depends entirely on one factor: Proof.

The Burden of Proof

In Turkish labor law, the principle is:

“He who claims overtime must prove it.”

Unless the employer admits to it, the worker bears the burden of proving that they worked extra hours.

Types of Evidence

1. Written Records (Strongest Evidence)

Courts prioritize written documentation. If these exist, the judge calculates exact hours.

• Swipe Cards / Fingerprint Logs: Entry-exit records.
• Timesheets: Signed daily/weekly work logs.
• Workplace Emails/Messages: Sent outside working hours (e.g., email sent at 22:00).
• GPS/Tachograph Records: For drivers or field staff.
• Bank Records: If partial overtime was deposited.

2. Witness Testimony (Most Common)

In 90% of cases, written records don’t exist. Courts then rely on witnesses.

• Who can be a witness? Fellow employees who worked in the same department during the same period.
• Statements: “We worked from 08:00 to 20:00 every day.”
• Equity Deduction: If relying only on witnesses, courts typically apply a 30% Equity Deduction (Hakkaniyet İndirimi) to the calculated amount, assuming a worker cannot work overtime every single day (sick leave, excuses, etc.).

3. The “Signed Payroll” Trap

If a worker signs a monthly payroll (bordro) that shows no overtime or shows a specific amount (e.g., 5 hours) without writing a “reservation” (ihtirazi kayıt), it is presumed true.

• Rule: You cannot claim more overtime for a month where you signed a payroll unless you have “written documents” proving otherwise. Witnesses are not accepted to contradict a signed payroll.

The Lawsuit Process

Step 1: Mediation (Mandatory)

Before suing, you must apply for mediation.

• Mediator calls the employer.
• You state your claim (e.g., “I worked 10 hours overtime/week for 3 years”).
• If no agreement, you get a “Disagreement Report.”

Step 2: File the Petition

File the lawsuit in Labor Court. Petition must state:

• Duration of employment.
• Claims (Overtime, UBGT, Severance).
• Evidence list (Witness names).

Step 3: Expert Review (Bilirkişi)

The judge does not calculate the amount. The file is sent to a Labor Expert.

• Expert reviews records and witness statements.
• Calculates weekly hours: (e.g., 08:00-19:00 = 11 hours - 1 hour break = 10 hours/day x 6 days = 60 hours. 60 - 45 = 15 hours overtime/week).
• Submits a “Calculation Report” to the court.

Step 4: Decision and Enforcement

The judge issues a verdict based on the report (minus equity deduction). You can then enforce the judgment to collect the money.

Statute of Limitations

• 5 Years: Overtime claims are subject to a 5-year statute of limitations.
• You can only claim back to 5 years from the date of mediation application/lawsuit. Older claims are time-barred (zamanaşımı).

Practical Advice for Workers

1. Don’t sign blank papers.
2. Add reservations: If forcing you to sign an incorrect payroll, write “Overtime rights reserved” (Fazla mesai haklarım saklıdır) near your signature.
3. Collect evidence: Save emails, photos of shift schedules, or WhatsApp logs before leaving the job.
4. Find credible witnesses: Colleagues who are also unhappy or left the job are usually willing to testify.

Legal Assistance: We specialize in labor lawsuits, helping workers gather admissible evidence and challenging incorrect expert reports to maximize compensation. Contact us for a case review.

Professional Legal Support

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