16.09.2020Patrick Thiébart

Alert – France: tired of paying your employees overtime? Opt for the day-contract!

In France, the legal working time duration is 35 hours a week.

Unless a company-wide agreement or a collective bargaining agreement provide otherwise, overtime hours worked in excess of this 35-hour threshold are increased by 25% for the first 8 overtime hours worked in the same week (i.e. from the 36th to the 43rd hour) and 50% for the following hours.

Unsurprisingly, many employers are reluctant to pay overtime.

Interestingly enough, employees in managerial positions who have autonomy in organizing their own working time and whose duties do not require them to follow a collective work schedule and, more generally, employees whose time schedule cannot be predetermined may work on the basis of a lump sum of working days over the year (so-called “day-contract”).

Under a day-contract, the employee’s working time is not recorded in hours but in days (generally, 218 days a year). It means that the employee is not subject to the maximum daily and weekly working hours.

Please be aware that day-contracts are subject to strict conditions of validity:

  • The terms and conditions of the day-contract must be included in a collective bargaining agreement or in a company-wide agreement;
  • An employee working under a day-contract must have a 11-hour daily break and a 35-hour weekly break. In order to comply with these legal requirements, the employer must ensure that the employee’s workload remains reasonable that his/her personal/professional life balance is fair.

Failure to comply with these legal requirements may make day-contracts null and void. In such a case, the employee may file an overtime claim over the past three years.

In order to avoid this, employers must require employees to provide them on a monthly basis with a form describing the date and number of the days / half- days worked over the past month as well as the dates and number of unworked days during this period (e.g. paid holidays, compensatory rest days).  When completing their forms, employees should have an opportunity to comment on the evolution of their workload from one month to another.  The employee must also have at least once a year a meeting with his/her manager to discuss any working time issue and his/her personal/professional life balance.

If these conditions are met, the employer should be able to get a court decision dismissing the employee’s overtime claim.

Otherwise, the employer will have to provide the court with documentary evidence of the hours actually worked by the employee, which can be quite difficult and time-consuming, especially when the collection of this type of information has to be done over the past three years.  As a plaintiff, the employee is in a much more comfortable situation given that s/he will only have to provide the court with factual information on the hours allegedly worked, which can be done on a unilateral basis (e.g. statement of hours worked, summary of daily working hours over the last three years).

Feel free to contact us if you need further information or legal assistance on the above.