Working time regulations in France: courts increase their control for executive and managerial employees

French courts have recently reaffirmed the company’s obligations towards employees hired under a working time scheme in days (forfait-jours), with costly sanctions in case of non-compliance.

Among the working time options available under French law, the so-called “forfait-jours” - a flexible working time arrangement in days (generally 218 days per year) that allows autonomous employees to work without any monitoring of hours or payment of overtime - is a popular solution.

Although very attractive for employers and employees alike, because it offers flexibility for both parties while entitling employees to additional days off (around 10 days per year, called “RTT days”), this scheme is subject to strict conditions:

1. the employer must record the number of days worked by the employees in the year;
   
   
2. it must ensure that employees effectively disconnect from work and comply with minimum daily and weekly resting time (at least 11 consecutive hours per day and 24 consecutive hours per week); and
   
   
3. the employer must hold individual meetings with each employee each year to discuss their workload and work-life balance. The frequency of these meetings is determined by the applicable collective agreement (usually once a year, or twice a year for companies under the Syntec CBA for example).

This third requirement is often overlooked by employers, which has led the French Supreme Court to reiterate that failure to hold these mandatory meetings is sufficient to render the forfait-jours arrangement inapplicable. This can prove to be very costly for the company, as it allows employees or former employees to claim back payment of any overtime hours worked above 35 hours per week over the past 3 years as well as a potential 6-month damage award for undeclared work and potential additional damages.

In a recent decision, the French Supreme Court has reaffirmed that it is the employer’s responsibility to prove that these meetings are held. After  acknowledging that the employer had not been able to provide evidence that these meetings had been held from 2005 to 2009, the Court considered that the defendant company had failed to comply with its obligations and granted the former employee €350,000 as back payment of overtime hours (17 February 2021, n°19-15.215).

In view of these somewhat disproportionate sanctions, companies operating in France are strongly encouraged to ensure that they comply with the
above-mentioned obligations and are keeping written evidence of such compliance.

Our French Employment Team remains available to help you design and implement the appropriate tools in order to comply with these key monitoring
requirements (bilingual meeting form, monthly monitoring sheet, etc.).

Bird & Bird France Employment Team