On 9 April 2014, The Guardian published an article that was immediately picked up on in English-speaking international news sources, often in humoristic terms: it reported that French law banned employees from answering work emails after 6 p.m. This report was inaccurate, and quickly denied by the French Secretary of State in charge of digital matters.
The truth was less sensational even if its implications may be a lot more serious.
In a ruling dated 24 April 2013 (http://www.bersay-associes.com/fr/flash-actualites-juridiques/), the social division of the French High Court had essentially found that the yearly working time package in days,- based on a determined yearly number of working days, – called “convention de forfait annuel en jours” (rather than a number of daily/weekly working hours) was invalid on the grounds that neither the Syntec branch wide collective bargaining agreement (CBA) entered into on 22 June 1999 (the Syntec branch wide covering consulting companies, primarily in the technology sector), nor the company-wide agreement were of a nature to “ensure the protection of the health and safety of the employee”, or “guarantee respect with maximum working time duration as well as daily and weekly rest periods”.
Admittedly, an agreement had been entered into by the relevant employers’ professional associations and the trade unionson 19 February 2013 – since extended – in relation to health at the workplace, providing inter alia that a tally of working days would be kept, but it did not meet all of the requirements laid down by the court two months later, namely an organisation permitting to ensure compliance with minimum rest periods, which must be assessed in hours.
In view of the impact and attention raised by the ruling of 24 April 2013, the consequences of which are – potentially – disastrous for companies in this sector (risk of being ordered to pay back pay for overtime by the courts, an indemnity for concealed work (“travail dissimulé”), damages for failure to respect the right to rest and health, etc.), the employers’ professional associations and the trade unions held negotiations that led to the signature, on 1 April 2014, of an amendment to Article 4 of Chapter 2 of the branch-wide agreement dated 22 June 1999.
The amendment dated 1 April 2014 in essence restated the provisions contained in the 1999 agreement: scope of application; number of days worked in a year limited to 218; compensation at least equal to 120% of the minimum salary under the CBA.
What was new were the following provisions:
- The individual early working time package in days agreement is required to state“the precise reasons why the employee concerned is autonomous, as well as the nature of his or her duties”; it must also refer to the collective agreement (branch-level and/or company-on) and indicate the number of days worked in the year, the compensation , as well as the number of meetings held in relation to working time (cf. infra);
- The parties may agree on a yearly working time package in days agreement, equivalent to part-time work computed in working days over the year;
- The flat-rate salary agreement should be accompanied by a statement itemising the number of days worked, based on “objective, reliable and verifiable monitoring” (for example, a self-statement).
To comply with the 2013 ruling, the amendment dated 1 April 2014 indicates that employees subject to a yearly working time package in days are entitled to benefit, like all other employees, from a daily and weekly rest period, respectively of 11 and 35 consecutive hours. These limits do not have for their purpose to set the length of the normal workday at 13 hours (24 – 11) but only the “maximum exceptional length”. Employers in the branch are required to display in the workplace the start and end of the daily and weekly periods when the minimum rest times must be respected. Employers must also introduce amonitoring tool to ensure this rest period is respected and guarantee that the employee has the possibility of disconnecting their laptops or mobile devices during this rest period (the employee being under the duty to disconnect). If an employee ascertains that he or she is unable to respect the minimum rest periods, then the employee must so inform the employer so that they can together search for an “alternative solution”. All of these provisions should be included in the company rules and policies.
The employer is responsible for ensuring the regular monitoring of the working time of employees under an yearly working time package in days, their workload as well as time spanned by their working days. In case of an unusual or abnormal increase in an employee’s workload, the employee can trigger an alert, in which case the employer has 8 days in which to meet with the employee and formulate corrective measures in writing (this meeting can also be held at the initiative of the employer).
The amendment dated 1 April 2014 provides for at least two annual meetings to be held for the specific purpose of reviewing with the employee his or her individual workload, the organisation of work within the company, the balance between professional and personal life and the salary received. It should be recalled that the law only provides for one type of annual meeting of this type (Article L. 3121-46 of the French Labour Code). To our mind, one of these meetings could be organized right before or after the annual performance evaluation meeting, taking care that they remain two separate meetings.
Also, the Works Council should be informed and consulted, every year, on the use of yearly working time package in days as well as the agreement for the monitoring of the workload of the employees concerned. This information (number of employees involved, number of alerts made, summary of measures taken) should also be transmitted to the workplace health and safety committee and consolidated in the unique social and economic database.
Employees under these agreements can also ask the occupational health doctor for an appointment for a special medical visit.
Lastly, the amendment dated 1 April 2014 also reproduces two provisions of the law:
- The possibility for the employee to waive (by amendment) his or her rest days in consideration for higher salary (cf. Article L. 3121-45 of the Labour Code). However, this option cannot lead to the employee working more than 230 days a year;
- Whenever the employee receives a salary that does not reflect the constraints imposed upon him/her, the employee may file a claim before the judicial court system for anindemnity compensation calculated on the basis of the harm suffered (cf. Article L. 3121-47 of the Labour Code).
This amendment expressly provides that it will only apply as of the first day of the calendar month following the date of publication of the regulation (Ministerial Order) extending its application. We have been advised that this deferred application applies even to companies in the Syntec branch that have joined one of the two employers’ professional organisations signatories of the amendment (“Fédération Syntec and Fédération CINOV”), the latter not wishing their members to run any risk.
Most of the above provisions are mandatory, both as regards existing and future company-wide agreements. Companies will have a period of 6 months from the date of extension of the amendment in which to introduce the contemplated measures. For companies that do not have any such agreement and/or trade union or staff representatives, the provisions of the amendment will receive direct application.
In conclusion, contrary to what The Guardian had reported, these new measures do not stem from the law but from a CBA; they are not intended to apply to a million employees, but to about 250,000 managerial-level employees in the consulting sector with this type of yearly working time package agreement in days. The amendment in no way prohibits employees from checking their emails after 6 p.m., but during their 11-hour rest period.
This amendment creates numerous obligations: modification by amendments of individual yearly working time package agreement in days (since those signed are not compliant); adaptation of possible company-wide agreements; introduction of a system calculating days worked and a tool for the monitoring of rest periods; display of rest periods; modification of company rules and policy; organisation and monitoring of a whistle-blowing procedure; organisation of two individual meetings a year; annual consultation of the Works Council and of the Health and Safety Committee, etc.
The amendment dated 1 April 2014 specifies that employees subject to a yearly working time package agreement in days are not subject to the maximum daily or weekly working time limits. This is modelled on the provisions of Article L. 3121-48 of the Labour Code, which is consistent with the very principle of working time being computed in days instead of hours. However, in its ruling on 24 April 2013, the French Supreme Court had found fault with the agreements for failing to guarantee not only rest time, but also “compliance with maximum working time”. Caution should thus lead companies in this sector to ensure that no employee works more than 10 hours a day or 48 hours a week (or 44 hours on average over a period of 12 weeks).
The Syntec CBA could of course serve as a model for other sectors.