The qualification of an executive officer (cadre dirigeant) makes it possible to rule out the application of regulations on working time to employees who benefit from them.
Filled with issues, this qualification was modeled by the “Cour de cassation” judges who, during the years 2015 and 2016, came to flesh out the requirements necessary to grant such a status, before turning back. Judges' decisions have now stabilized.
In the last two years, answers have also been provided about the importance given to the written word before recognizing or not the quality of senior manager to the employee.
1) The prominence of legal criteria in determining the application of executive status
The French Labor Code in its article L. 3111-2 (1) provides three criteria for conferring executive status on an employee, thereby excluding the application of the regulations on working time: "Are considered as having the quality of executive manager of the executives who are entrusted with responsibilities whose importance implies a great independence in the organization of their schedule, who are empowered to make decisions in a largely autonomous way and who receive a remuneration lying in the highest levels of compensation systems in their business or establishment. "
The Court of Cassation had added a fourth element, that of participation in the management of the company (2). It then added that this element was not a criterion in its own right (3), which could not be substituted for the legal criteria.
By a decision of October 24, 2018 (n ° 17-20477) (4), the social chamber confirmed this position. Indeed, she considers that the judges of the fund should have "[examine] the situation of the employee with respect to these three legal criteria" before granting the request of the employee. The latter intended to obtain a reminder of overtime. However, the company opposed his status as an executive officer, excluding the statement and payment of any overtime. To this, the Court of Appeal replied that the employer does not show that "the latter actually participated in the management of the company", without finding out whether the three criteria prescribed by law was met. Thus, the Court of Cassation scrupulously recalled in its expected said criteria.
In a decision delivered a few months before, on May 30, 2018 (n° 16-25557) (5), the High Court judges did not refer to the fourth Praetorian criterion of effective participation. In fact, in the first part of its expectations, the Court of Cassation merely noted that "the person concerned had full discretion in the organization of his schedule, enjoyed a very wide power of decision and received in the highest levels of the firm "before concluding" that he had the quality of executive officer ".
The Court of Cassation seems to perpetuate the priority given to the legal criteria, while adjusting their application, in two judgments delivered in June 2019:
- On June 19, 2019 (n°18-11083) (6), if she acknowledged that the first two were fulfilled (great independence in the organization of the timetable, remuneration among the highest), she noted, however, that the last (autonomy in the exercise of these missions) was not satisfied "so that he did not participate in the management of the company", before finally stating that "the employee [co-manager] does not could claim the quality of senior manager.
- In a previous decision of October 2nd 2019 (n° 17-28940) (7), the social chamber retains a very factual approach by including a bundle of indices such as the fact that the employee, head of establishment, " had to be present within the structure ten half-days a week ", that" he could only sign checks with the authorization of the board of directors ", that he was only allowed to" propose recruitments "without power sign a work contract. From these elements it holds, like the Court of Appeal, that the employee "did not have the quality of senior management".
2) The assessment of the reality of senior management status in the light of the contractual context
On the occasion of the aforementioned decision of May 30th, 2018 (No. 16-25557), an employee, a chartered accountant, attempting to get out of the qualification of senior executive argued that it should have been specified in writing to be enforceable by his employer. To this end he relied on various provisions of the collective agreement then applicable to his employment contract. In this case, the Court of Cassation sweeps this argument, stating that the collective agreement invoked provided no provision "subordinating the exclusion, for senior management, from the regulation of hours of work, the existence of a written contractual document ".
On the contrary, when in the decision of September 7th, 2017 (n ° 15-24725) (8), the Court of Cassation notes that the employee, responsible for a profit center, was subject to an individual flat-rate agreement. The consequence is that the agreement between the parties excludes the quality of senior executive. In addition, it was established that "the parties had signed an undertaking pledge stating" your employment in the executive category is governed by an annualization agreement of working time on the basis of 218 days ". Thus, the Court of Cassation goes so far as to state that the Court of Appeal "did not have to carry out a search on the possible quality of senior manager of the employee". It had therefore "supremely deduced the existence of overtime".
- L. 3111-2, Labor Code: https://www.legifrance.gouv.fr/affichCodeArticle.do?idArticle=LEGIARTI000006902439&cidTexte=LEGITEXT000006072050&dateTexte=20080501
- Cass. Soc., 31 January 2012, n ° 10-24412 (for example): https://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000025287680&fastReqId=1816798375&fastPos=10
- Cass. Soc., June 22, 2016, n ° 14-29246: https://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000032777089
- Cass. Soc., October 24, 2018, n ° 17-20477: https://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000037556313&fastReqId=595215665&fastPos=1
- Cass. Soc., May 30, 2018, n ° 16-25557: https://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000037043026
- Cass. Soc., June 19, 2019, n ° 18-11083: https://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000038708874&fastReqId=900921464&fastPos=1
- Cass. Soc., October 2, 2019, n ° 17-28940: https://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000039213556&fastReqId=1159818159&fastPos=1
(8) Cass. Soc., September 7, 2017, No. 15-24725:
Frédéric CHHUM, Avocats à la Cour et membre du conseil de l’ordre des avocats de Paris
Claire Chardès juriste
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