Watch out for your employees' working hours!

In a ruling handed down on 11 May 2023, the French Supreme Court (“Cour de cassation”) ruled that exceeding the maximum daily working time “necessarily causes harm to the employee, which must be compensated, without the employee having to prove the existence of such harm or its link with the employer's breach”. This decision follows the one on January 26^th, 2022, which held that exceeding the maximum weekly working time necessarily caused prejudice to the employee.

We would like to take this opportunity to reiterate some of the obligations in terms of working hours for full-time employees, in particular because of the employer's obligation to monitor the duration of work of its employees. This is one of the employer's prerogatives, and the employer must be able to demonstrate the number of hours worked by its employees (with certain exceptions).

Employees may be required to work overtime in excess of the legal (35 hours per week or 1,607 hours per year) or the collective bargaining agreement’s working hours, at their employer's request (explicit or implicit), in compliance with the legal provisions; in particular the maximum working hours.

Employees may not refuse to work overtime up to the limit of the annual overtime quota, which is 220 hours per employee in the absence of collective bargaining agreement’s provisions increasing or reducing this amount. Beyond this, the employee's agreement is required, and a compulsory rest period is applicable, in addition to the increase in salary and/or compensatory rest equivalent to the increase applicable to all overtime hours.

So, in principle, employees can work more than 35 hours a week, but the maximum working hours must be respected. According to the Labour Code, these are:

• 10 hours per day.
• 48 hours per week. This is an absolute ceiling, and you need to be very careful, as employees cannot work more than 44 hours a week on average over a period of 12 consecutive weeks.

Minimum rest periods must also be respected:

• 20 consecutive minutes of rest once 6 consecutive hours have been worked.
• 11 consecutive hours between 2 working days.
• 35 consecutive hours of weekly rest. This is the sum of the 11 hours of daily rest and the 24 hours of weekly rest.

Finally, it is forbidden to make an employee work more than 6 days a week.

Good to know: exceptions and adjustments may also be provided for in the collective bargaining agreement.

There are also exceptions, in particular due to the status of employees:

• Employees under 18-year-old, for whom specific provisions apply.
• Employees working a fixed number of days (“forfait-jours”), who, in accordance with article L. 3121-62 of the French Labour Code, are not subject to the provisions relating to:
  • the legal weekly working time of 35 hours.
  • maximum daily working hours.
  • maximum weekly working hours.

However, they are still entitled to minimum rest periods (daily and weekly), while retaining total freedom in the organisation of their working hours and having a reasonable daily amplitude and workload.

Please note that there are several conditions that must be met for the “forfait-jours” arrangement to be applicable. We invite you to contact us to find out more about this highly specific form of working time, despite its popularity.

• Employees with the status of executive director (“cadre dirigeant”) who, in accordance with article L. 3111-2 of the French Labour Code, are excluded from the regulations on working hours, particularly as regards minimum rest periods, maximum working hours, monitoring of working hours, payment of overtime, etc.

You should also be careful about the applicability of this status, which is subject to several conditions. Please do not hesitate to contact us.