Extra hours, or rather, overtime at work
This time we will talk about extra hours, or rather, overtime at work.
In accordance with case law 4a. /J. 16/1994 issued by the Fourth Chamber of the Supreme Court of Justice of the Nation published in the Gazette of the Judicial Weekly of the Federation in No. 77, which states that:
“The execution of work in extraordinary time must be ordered or authorized by the employer, and therefore, it should not be left to the worker to decide to exceed his ordinary working day, also creating at his own discretion the employer’s obligation of payment.”
In the same case law, it is also stated that the parties may agree in the individual contract of employment that it must mediate written order to work extraordinary time (extra hours), as can be seen below:
“In an individual or collective contract of employment, it is legally valid to expressly agree that the worker shall only be obliged to work extraordinary time as long as there is in his possession a prior written order from the employer or his authorized representatives, in which the tasks to be carried out and the time required are clearly indicated.”
The jurisprudential thesis states that in case of being agreed in the individual contract of work expressly that must mediate the order in writing of the employer or his representatives to work extraordinary time, and in case of not existing such order in writing “only creates the presumption“, so that the mere presumption is not sufficient, as established in the same case law:
“The existence of such a covenant only creates the presumption that extraordinary time should have been worked only after the written order of the employer, a presumption that on its own it is not sufficient to relieve the latter of the burden of proof when the worker claims to have worked overtime or a longer working day than is legally or contractually agreed.”
When the worker claims to have worked extra hours or a day longer than that provided for in the Federal Labour Act, and in the case of extraordinary time exceeding nine hours, the worker must prove that he has worked overtime and relieve the employer of the burden of proof. Therefore, it’s up to the employer to prove the length of the ordinary working day.
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The main purpose of this information is to provide guidance to the general public. It does not replace the provisions of applicable law. Nor does it replace the specialized legal advice or consultancy that can be offered by any of the lawyers and/or accountants of Bandala | Díaz | García