Senior executives are not subject to the working time provisions. It is tempting for some companies to confer this legal status to all the senior executives.
Nevertheless, the French Supreme Court (Cour de cassation) has put some limits to this practice by reminding the conditions which rule the senior executives' status.
In this case, a company gave the senior executives status to all its senior executives. In 2005, one of them has been dismissed. This one referred the case to the French Employment Tribunal (Conseil de Prud'hommes) to challenge his manager status and to apply for an overtime pay back.
The Dijon Court of Appeal, on November, 28th 2006, decided that this director did not have the senior executive status and condemned the company to pay him some amounts as overtime pay back and compensatory work off.
The company referred the case to the French Supreme Court (Cour de cassation).
The Social Section of the French Supreme Court rejected this claim, because the concerning senior executive, who was director of a company's shop, was not part to the higher wages of the company and had no staff recruiting capacity, outside of any directive from his immediate superior, nor even to apply a business politic defining his own.
The Court also reminds that : “the senior executives is defined by the article L. 212-15-1, becoming L. 3111-2 of the French Employment Code, as the one who is entrusted responsibilities which of the importance involved a huge independence in his timetable organization, who is able to decide in a broadly autonomous way and who receives a wage situated at the highest level of the wage system practiced in the company or the establishment.”
Companies have so to confer the manager status to a handful of their senior executives ; failing that, the penalty is heavy : potentially condemnation to pay overtime with a 5 years prescription.
A word to the wise!
(Cass. Soc. 18 juin 2008 n°07-40.427)
Frédéric CHHUM avocat à la Cour
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