New conditions for French working time for executives

Since 2011, the French Supreme Court has adopted a very strict position as regards fixed-working time calculated in days per year, considering that many employees working under such working time scheme do not benefit from sufficient guarantees concerning the protection of their health and safety. If your company provides for such working time scheme for its executives in France, click here to ensure that you are ahead of your legal obligations.

Background

In France, the legal duration of work is 35 hours per week. Any hour worked above this threshold is considered as overtime and must thus be remunerated at an increased rate.

A derogatory and more flexible working time scheme has been created for executives who are independent in the organization of their work. These executives may benefit from a lump-sum remuneration agreement called “forfait-jours” based on a fixed number of working days per year (usually 218 working days per year). In compensation to this specific working time, the executives benefit from extra rest days called “RTT days” instead of overtime pay (usually around 10 RTT days per year)

The use of this derogatory working time scheme is only admitted when:

• A valid collective agreement set forth such possibility. Said collective agreement is either (i) entered into at the level of the sector of activity of the company (e.g., collective bargaining agreement applicable to consulting and engineering firms and most of the companies working in tech, media and comms (“SYNTEC”), or (ii) entered into at the company’s level between the employer and the trade unions representatives within the company.

• And, an individual agreement is entered on this matter with the concerned executive, usually directly in the employment agreement.

Since 2011, the French Supreme Court has rendered many decisions holding that the forfait-jours arrangements applicable to the claimants were void because the applicable collective agreements did not provide enough guarantees as to the claimants’ right to health and rest time.

In practice, these decisions entailed severe financial consequences for the concerned employers as the claimants were entitled to ask for overtime payment for the past three years, for any hours worked beyond the 35 hours of work per week’s threshold.

New requirements for collective agreements providing for forfait-jours arrangements

Pursuant to the recent French Supreme Court’s case law, in order to be valid, collective agreements providing for forfait-jours arrangement should set forth notably the following guarantees:

• Obligation to track the number of employees’ days of work and the employees’ compliance with the minimum legal rest time (i.e., 11 consecutive hours of rest per day and 35 consecutive hours of rest per week);

• Obligation to hold at least one meeting per year between the concerned executives and their line manager to discuss notably their workload, their working time organization and the length of their working days.

These requirements must not only be provided by the applicable collective agreement, but must also be carefully applied in practice.

Advice

In view of the strict position of the French Supreme Court, companies entering into forfait-jours arrangements with their executives should carefully verify that the two following criteria are met:

(i) the applicable collective agreement providing for forfait-jours arrangement complies with the requirements set by the Supreme Court; and

(ii) said requirements are applied in practice within the company.

If one of these criteria is not fully met, there is a risk that the concerned executives ask for overtime payment over the past 3 years. Also, the concerned executives would be entitled to ask for the constructive dismissal of their employment contract, which would entail the payment of additional indemnities to the employee.

As the position of the French Supreme Court started to be quite well-known among executives in France, we would recommend to check/implement these new requirements rather quickly.