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Days off granted to an employee under a flat-rate pay arrangement in days (“forfait jours”) that is held unlawful must be paid back

9 février 2021

Under French employment law, executive employees who are allowed a significant autonomy in the organization of their work can be subject to a flat-rate pay arrangement for a defined number of working days per year (generally 218 days per year).

The employer must ensure the evaluation and monitoring of the workload of the employees subject to such a working time organization on a regular basis. In addition, the employer and the employee must periodically discuss the employee’s workload, the balance between the employee’s professional activity and their personal life, their remuneration, as well as the work organization in the company.

In a recent case, an employee claimed for the suspension of his flat-rate pay arrangement in days and demanded overtime payment, on the grounds that his employer had not complied with the arrangements regarding the monitoring of the employee’s working time and workload as prescribed in the applicable collective agreement.

The Court of Appeal heeded the employee’s request.

The decision of the Court of Appeal is in line with the French Supreme Court’s case law, which states that the employer’s failure to comply with the rules regarding the protection of the employees’ safety and health renders flat-rate pay arrangements in days ineffective (Cass. soc. 2-7-2014 no. 13-11.940; Cass. soc. 22-6-2016 no. 14-15.171).

Thus, the arrangement in days no longer applies and the employee’s working time must be counted on the basis of the legal working time, i.e. 35 hours per week. The employee is therefore entitled to overtime payment for the hours worked beyond 35 hours per week.

The employer was however arguing that, if the arrangement is unenforceable, then the additional days of rest granted under it are not due. The employer was thus claiming for a payback.

The Court of Appeal dismissed the employer’s claim. According to the Court, the fact that the lump-sum agreement in days is suspended, and not cancelled, could not result in depriving the employee of his additional days off.

The French Supreme Court ruled in another way, holding that since the flat-rate pay arrangement in days was unenforceable, the payment of the days off pursuant to the arrangement was undue for the duration of the period during which the arrangement was considered unenforceable.

As a result, employers involved in disputes relating to the unenforceability of an annual flat-rate pay arrangement in days could, on the basis of this case law, claim for the reimbursement of the days off granted to the employee in order to partially offset any amounts due to the employee as overtime payment.

 

Cass. soc., January 6, 2021, No. 17-28.234