As previously commented in one of our articles, French case law has subjected to increasingly strict scrutiny employers using “forfait jours”, i.e. a specific method of working time for autonomous executives (whose working time is calculated as a number of days worked over the year rather than a number of hours per week).
In 2011, the French Supreme Court held that such method could only be used if the relevant collective bargaining agreement (CBA) allowing for the implementation of such working time organisation included provisions protecting employees’ health and safety and their right to rest periods.
The Supreme Court, in a decision of 24 April 2013, held that the provisions of the Syntec industry-wide Collective Bargaining Agreement (which covers, in particular, the consulting sector) did not include such provisions. As a result, the Supreme Court therefore held that “forfait jours” agreements entered into by employers with employees based solely on the industry-wide CBA were null and void. This decision was disastrous as most of the employees working in this industry sector were then working under a “forfait jours” system.
One year later on 1st April 2014, after negotiations between the unions and the employers, an amendment to the Syntec CBA was finally entered into in order to secure the use of “forfait jours” agreements in this industry sector. Such amendment has been very recently extended to the sector as a whole and is applicable since 1st August 2014.
Therefore, it may be hoped that, as from such date, the “forfait jours” agreements concluded under the Syntec CBA will be compliant with case law requirements. However, those employees who were already subject to a “forfait jours” system prior to the amendments could still challenge the validity of such provision for the past (i.e. for the period prior to the publication of the recent amendment to the Syntec CBA), given such system had been invalidated by the Supreme Court. Moreover, it would be preferable to amend the contract of such employees so that they enter into a revised valid “convention individuelle de forfait” in order to limit the risk for the future.
In any event, steps should be taken to ensure that the provisions included in the Syntec CBA are duly and effectively complied with both for current and new employees. In this respect, the new version of the Syntec CBA notably provides that:
- The “forfait jours” agreement must specify the reasons for which the employee is considered as autonomous and the nature of the duties which justify the use of this working time organisation;
- The employer must implement a follow-up system in order to ensure compliance with the statutory minimum rest periods and must post in the company’s premises the start and end of the daily and weekly rest periods;
- The employer is required to prepare a document outlining the number and date of the days worked as well as the positioning and qualification of the non-worked days;
- The employer must organize at least 2 individual meetings with the employee each year so as to discuss, inter alia, the individual workload, the length of working days and more generally the balance between professional and private life. It should also be noted that the employee, in case of unusual difficulty, is entitled to request the holding of a meeting with the employer in order to address this difficulty;
- Finally, one of the provisions that has attracted the most attention, especially from foreign observers, is the one stipulating that the employer must ensure that the employee has the ability to disconnect the communication tools (smartphone, blackberry, etc.) put at his/her disposal outside his/her working time.
In conclusion, it should be recalled that such obligations should not be disregarded as failure to comply with them would allow the employee to claim in particular the payment of overtime worked above 35 hours a week (and in a worst case scenario lodge a claim for clandestine work which, if the claim takes place at the termination of the contract, could also lead to the payment of 6 months’ damages in addition to all other dismissal entitlements).