According to a study published on January 26th, 2018 by French Ministry of Labour, employees (salariés) made, between January and September 2017, an average of 10.2 hours of overtime per quarter.
However, these figures only take into account overtime worked, reported and paid by the companies.
In practice, many extra hours / overtime (heures supplémentaires) are worked by employees without being paid.
Above all, unlike an urban legend, executives (cadres, cadres supérieurs) can be paid overtime.
In a context of a labour dispute, overtime is often an important item of employee demands.
Sometimes, the amount of overtime claimed by an employee may be equivalent to the amount of damages for unfair dismissal.
The “Macron” ceiling on indemnities for unfair dismissal will at the same time lead employees to make further claims to the labour tribunal, in addition to challenging their dismissals.
I) Executive managers and executives with “forfait jours”: can I be paid for my overtime?
A- Senior executives (Cadres dirigeants) and overtime (heures supplémentaires)
As a matter of principle, senior executives (cadres Dirigeants) are not subject to legislation on overtime.
Nevertheless, if the employee demonstrates that he does not fulfill the 4 cumulative conditions of the senior executive (responsibilities whose importance implies a great independence in the organization of his schedule, empowerment to make decisions in a largely autonomous way, remuneration being in the highest levels of the remuneration systems in the company, participation in the management of the company), he can obtain payment of overtime.
By way of example, in a judgment of November 15, 2017 (Mr X C / RMH & LOUVRE HOTELS GROUP), the Paris Court of Appeal upheld the judgment of the Meaux Labour Tribunal which had condemned the company to a payment of EUR 72,441 gross as overtime reminders (rappels d'heures supplémentaires).
The employee employed as Director, senior executive, had demonstrated that he did not participate in the management of the company, that he did not have one of the highest remuneration and that he could not take any decisions in a largely autonomous way.
In order to demonstrate overtime, the employee produced the weekly schedules of the staff, validated by the employer as well as a general summary table of his schedules.
B- "Forfait jours" and overtime
The use of Forfait jours must be authorized by a collective agreement at the company or site (établissement) level or by a branch agreement (article L.3121-63 of the Labour Code).
This agreement must specify the categories of employees concerned, the volume of packages and the main features of the packages.
The agreement must also contain provisions ensuring the protection of health and safety of the employees and set the conditions for regular monitoring of the workload of employees (charge de travail).
If the agreement does not provide for one of these provisions, the fixed-term agreements are null and void.
If the employer does not comply with the contractual provisions governing the “forfait jours” (for example if it does not set up an annual evaluation on the workload), the “forfait jours” are not effective.
In both cases, the employee's working time must be calculated on the basis of 35 hours and he / she can then request the payment of his overtime, subject to substantiating his request.
Thus, in a judgment of 21 February 2018, the Paris Court of Appeal sentenced an employer to pay 15,000 euros as overtime reminders, since the latter did not set up an annual evaluation evoking the workload of the employee.
In support of his request for overtime, the employee produced e-mails, schedules, certificates and overtime tables to support his request.
II) How to calculate overtime under French law ?
2.1) The principle: 35 hours per calendar week.
Overtime is calculated by calendar week (semaine civile), which is Monday at 0.00 to Sunday 24.00.
Therefore, hours worked beyond the daily hours of work are not necessarily overtime because overtime is calculated over the calendar week (semaine civile).
Only hours worked in excess of 35 hours per week are overtime hours.
Ms. X works 35 hours a week, from 9 am to 5 pm, with 1 hour of lunch break (7 hours of actual work per day).
During the week of January 8 to 14, 2018, Ms. X worked from Monday to Friday, from 9 am to 7 pm, with 1 hour of lunch, ie 9 hours of actual work per day.
She therefore performed: 9 hours x 5 days = 45 hours.
His employer must therefore pay him 10 extra hours.
During the week of January 15 to 21, 2018, Ms. Y paid 2 days of paid vacation on Thursday and Friday.
She worked from Monday to Wednesday, from 9am to 7pm, with 1 hour of lunch break.
She therefore performed: 9 hours x 3 days = 27 hours.
No extra hours are due to him.
It is therefore imperative to count the days of paid leave / absence for sickness or other day of absence (décompter les jours de congés payés / absences pour maladie ou autre jour d’absence) in order to calculate the exact working time.
2.2) Overtime payment (la majoration des heures supplémentaires) : 10%, 25% or 50%?
In the absence of a collective agreement, overtime premium rate is fixed at 25% for the first 8 hours, then 50% for the following hours (Article L.3121-36 of the Labor Code).
A collective agreement may, however, set overtime rates, but may not be less than 10%.
The salary for overtime calculations corresponds to the "basic salary", which takes into account all elements of remuneration "directly related to the employee's professional activity" (Cass.soc., September 23rd, 2009, n ° 08-40.636).
Thus, in the calculation of the salary to be increased the bonus for Sunday work, at night, but also the benefits in kind (avantage en nature) or target bonus.
2.3) The exceptions.
2.3.1) Annualization of working time (Article L.3121-41 of the Labour Code)
A collective agreement may provide for the organization of working time over a period of more than one week and, at most, over three years.
If the working time is organized over an annual period, the trigger for overtime is set at 1607 hours (except for a more favorable collective agreement).
The collective agreement may also provide for the possibility of establishing a weekly calculation of working time, which would trigger overtime.
In case of organization of working time over a period of less than or equal to 1 year, are considered as overtime (Article D.3121-25 of the Labour Code):
Hours worked beyond 39 hours per week;
Hours worked beyond the average 35-hour week calculated over the reference period.
2.3.2) The days of “RTT”.
An employee may benefit from RTT days to compensate, by rest days, for a working week of more than 35 hours.
An employee working 37 hours a week has 12 days of RTT per year.
The "extra" hours worked each week do not give rise to financial compensation but to compensation in days of rest (RTT).
3) How to prove overtime before the Conseil de prud’hommes
In terms of overtime, the Labour Code provides for a shift in the burden of proof.
Thus, Article L.3171-4 of French Labor Code provides that "In the event of a dispute concerning the existence or the number of hours of work completed, the employer shall provide the judge with the information necessary to justify the hours actually carried out by the employee.
On the basis of these elements and those provided by the employee in support of his application, the judge forms his conviction after ordering, if necessary, all the measures of inquiry that he considers useful. "
All the elements enabling the actual work schedules to be demonstrated can be produced as soon as they make it possible to determine exactly the hours worked.
It could be:
- Score records;
- Personal diary (including personal and professional appointments) specifying start time and end time each day;
- testimonies from colleagues;
- Train / plane / bus tickets for business trips;
- shared professional agenda.
4) In practice, how to prepare your file before the prud’hommes ?
In order to simplify and make more readable overtime count, it is best to provide an “Excel” file below.
The summary table should be a strict reflection of the elements produced to demonstrate overtime.
Only demonstrated overtime, with supporting evidence, is likely to be admitted before a Labour tribunal or a Court of Appeal.
In the absence of evidence to demonstrate the actual schedule, it will only take into account the applicable time in the company.
5) The 3-year time limit (prescription) of overtime recall requests.
Since the 2013-504 securing employment law of June 14, 2013, article L.3245-1 of the Labour Code provides for a 3-year time limit “prescription” for salary recall requests.
This period of 3 years applies "from the day on which the exerciser knew or should have known the facts enabling him to exercise it" or, if the employment contract is broken "on the amounts due under three years before the termination of the contract ".
6) Concealed work (travail dissimulé) and overtime.
In the presence of unpaid overtime, an employee may also obtain an allowance for concealed work (travail dissimulé) corresponding to 6 months’ salary (Article L.8223-1 of the Labor Code).
In fact, under Article L. 8221-5 of the Labor Code: "is deemed to be concealed work, by concealment of salaried employment, the fact for any employer to intentionally evade the completion of the formality of declaration prior to hiring, to evade the issuance of pay slips or to mention on the latter a number of hours of work less than that actually accomplished ".
Thus, it is considered as concealed work that an employer does not mention overtime on the pay slip (fiche de paie), and therefore indicates a lower number of hours of work than actually worked.
Recently, in a judgment of 13 February 2018 (Mrs X c / CRAZY ENTERTAINMENT), the Paris Court of Appeal sentenced an employer to pay compensation for concealed work for having mentioned, on the payslips (les fiches de paie), a number of hours of work less than the actual work done.
In particular, the judges found that the employer could not have been unaware that the employee had worked overtime, which had not been remunerated or mentioned on the pay slips (and therefore not declared and subject to social security contributions).
In support of her request for overtime and concealed work allowance, the employee produced a count of overtime hours, schedules indicating the scheduled hours, and certificates of employees.
Similarly, in a judgment of 23 January 2018 (Mr Z c / TF1 PRODUCTION), the Versailles Court of Appeal sentenced an employer to the payment of compensation for work concealed because of the non-payment of 630.74 euros overtime.
Similarly, in a high-profile judgment of 21 February 2018, a hairdresser obtained the conviction of his former employer for an allowance for covert work of 9,000 euros for non-payment of 3.5 hours overtime.
The Court of Appeal thus held that the employer had "knowingly” omitted to take into account the hours thus completed and to pay them when the balance of any account is paid.
In support of his request for overtime, the employee produced the handwritten schedules of the hair salon.
Frédéric CHHUM, Avocats à la Cour (Paris et Nantes)
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