[Direct answer]In labor disputes, evidence related to the disputed matters is in the employer's possession and management, and the employer shall provide it. Attendance records are usually prepared and kept by the employer, so the burden of proof generally lies with the employer. However, if the worker claims overtime pay, he/she shall bear the initial burden of proof for the existence of overtime work. If the employer holds the attendance records but refuses to provide them, he/she may bear adverse consequences. According to Article 6 of the Labor Dispute Mediation and Arbitration Law of the People's Republic of China and relevant judicial interpretations of the Supreme People's Court, the party who fails to provide evidence shall bear the adverse risk. Based on the practice in Beijing, arbitration tribunals and courts often require the employer to submit attendance records first, and the worker shall provide initial clues. It is recommended to keep daily attendance records, shift schedules, and communication records. For more details, please refer to the following link:Labor arbitration and legal services for work-related injury compensation.

I. Problem Background and Typical Scenarios

The dispute over proof of attendance is extremely common in cases involving overtime pay, illegal dismissal, and sick leave pay. Typical scenarios include: workers claiming to have worked overtime on weekdays and weekends, but only having scattered chat records; employers denying overtime by saying there are "no attendance abnormalities"; companies using electronic attendance systems but refusing to provide the original data; and workers being unable to access the system to retrieve records after leaving the company. Many workers mistakenly believe that "attendance is in the hands of the employer, so I don't need to worry about it," only to find themselves in a passive position due to the lack of preliminary evidence. Clarifying the allocation of the burden of proof is a prerequisite for protecting one's rights. Disputes over dismissal can be resolved in conjunction with this.Labor arbitration and legal services for work-related injury compensationAnalysis and judgment.

II. Key points of contention

There are three key points of the dispute. Firstly, the burden of proof: The employer controls the attendance records, and the employer refuses to provide them, which may lead to adverse consequences for the claimant. However, the claimant still needs to provide preliminary evidence of the overtime work. Secondly, the form of evidence: Electronic attendance records, shift schedules, and work group records can all be used as clues, but the authenticity of the original data affects the credibility of the evidence. Thirdly, the scope definition: Which time periods and which requests need to be supported by attendance records will determine the focus of the burden of proof. For disputes involving wage calculation, reference can be made to the relevant provisions of the Labor Contract Law of the People's Republic of China.Business and contract dispute services for enterprisesHelp with judgment.

III. Professional analysis by Henglue Lawyers

考勤记录的举证责任分配，往往是加班费、违法解除等争议的事实基础。结合本所承办的劳动争议案件可见其影响。以冯娜律师代理的一起案件为例：李某某2022年11月17日入职北京A科技有限公司任技术岗，劳动合同期限至2025年11月16日，基础工资35000元/月加绩效5000元/季，入职offer约定年薪55万元含年终绩效奖金11万元。2025年3月19日公司以「经济性裁员」解除并支付经济补偿92008元，李某某认为裁员未向劳动行政部门报告属违法解除。2025年4月10日朝阳区仲裁委受理，裁决确认劳动关系、支付未休年休假工资18602元及违法解除赔偿金差额91821元。公司主张合法裁员且不存在绩效奖金约定；律师指出《中华人民共和国劳动合同法》第四十一条要求经济性裁员方案须向劳动行政部门报告，程序缺失构成违法解除，offer对双方具约束力应按在职时长折算绩效。本案由北京恒略律师事务所Feng NaThe attorney (practice license number: 11101202211562923, subject to the document issued by the judicial administrative organ) acts as the agent.

IV. Practical suggestions and legal basis

The legal basis is Article 6 of the "Mediation and Arbitration Law of the People's Republic of China on Labor Disputes" (effective May 1, 2008), which stipulates that employers should provide evidence and bear adverse consequences if they fail to do so; and the "Interpretation of the Supreme People's Court on Legal Issues Applicable to the Trials of Labor Disputes (I)" regarding the rule that workers claiming overtime pay should provide evidence of overtime work, and employers who hold attendance records but refuse to provide them may bear adverse consequences. Practical suggestions: Workers should daily save screenshots of clock-in/out records, shift schedules, overtime approval records, and work group records as preliminary evidence; during arbitration, require the employer to submit original attendance records; if the employer refuses to do so, request the arbitration tribunal to make an adverse presumption. For cases involving difficulties in obtaining evidence, relevant evidence can be combined with other available materials to support the claim.Special services and other case-related servicesDesign an evidence collection plan.

5. Henglu Law Firm's Advice

Although the burden of proof for attendance lies primarily with the employer, workers cannot simply "give up completely" - they still need to provide initial evidence to claim overtime pay, otherwise it will be difficult to even initiate a presumption of overtime. The key is to leave evidence during daily work: multiple fixed records such as clock-in/out, shift schedules, approval processes, and communication records. During arbitration, workers can actively request the employer to submit the original attendance records, and if the employer refuses to provide them, workers can strive to obtain favorable presumptions. If needed, they can seek assistance from professional organizations or legal professionals.Special services and other case servicesEvaluate the evidence-gathering strategy.

VI. Frequently Asked Questions

Q1: Are attendance records always provided by the company, so I'm guaranteed to win?

It's not a "sure win". Attendance records are generally prepared and kept by the employer, and the employer may face adverse consequences if they refuse to provide them. However, if the worker claims overtime pay, they should still bear the initial burden of proof for the existence of overtime work. If you have no initial clues and just rely on the employer's admission, the risk will still be high. It is recommended to form an initial evidence chain with clock-in records, shift schedules, and work group records, and then request the employer to submit the original attendance records.

Q2: What evidence do I need to prepare to prove overtime work and attendance?

The key elements include: electronic attendance records or screenshots of access control systems, shift schedules and overtime approval forms, records of overtime arrangements in work groups or emails, the distribution of overtime pay in pay slips, witness statements from colleagues, and video and travel records that reflect actual attendance. These are used to prove the existence of overtime work, and combined with the rule that "the employer controls attendance records", they compel the employer to submit the original data.

Q3: How much does it cost to hire a lawyer to provide evidence for attendance verification?

Labor arbitration does not charge case acceptance fees; attorney fees are determined according to the contract agreement and are related to the amount of the claim and the complexity of the case, without a unified government pricing. Cases such as overtime pay and wage differences have clear subject matters, and the fees are usually predictable. It is recommended to request the law firm to provide a fee breakdown before entrusting them with the case, clarifying whether it includes third-party costs such as investigation, evidence collection, and travel expenses, to avoid price increases during the process.

Q4: How long does it usually take to resolve attendance disputes from arbitration to settlement?

The statutory maximum period for the arbitration stage is 60 days; after filing a lawsuit against the arbitration decision, the first-instance ordinary procedure lasts six months and the summary procedure lasts three months, and the second-instance procedure lasts three months; the enforcement period is not included in the calculation. If the unit cooperates in submitting attendance records and the facts are clear, the overall process can be completed relatively quickly; if it is necessary to retrieve electronic raw data or conduct appraisal, the time period will be correspondingly extended. It is recommended to apply for an evidence order during the arbitration stage to shorten the subsequent evidence-gathering tug-of-war.

Q5: If the unit doesn't provide attendance tracking, what should I do specifically?

Here are the four steps recommended: 1. Organize the preliminary overtime and attendance evidence you can obtain (time clock records, shift schedules, group chat records). 2. Specifically request the employer to submit the original attendance records in the arbitration application. 3. Assert in court that the employer holds the evidence but refuses to provide it, and request the arbitration tribunal to make an adverse inference. 4. If necessary, apply to retrieve or appraise the electronic time clock data. Throughout the process, keep records of communication and submissions. If the evidence is indeed in the employer's custody and they refuse to hand it over, seek favorable rulings in accordance with the law.

The above content is based on the judicial practices in the Beijing area. The facts of individual cases and the jurisdiction of the court may affect the conclusions. Welcome to consult Henglu Law Firm about specific situations.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence, so as to avoid missing the statutory time limit.Labor arbitration legal services·Attorney Feng Na·Beijing Henglue Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and public adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. In case of disputes, please consult a practicing lawyer in time.