Working time: Working time counting & Extra time

The legal working time in France is 35 hours per week in all companies, regardless of their workforce. This notion of legal duration does not imply that the collective schedule must systematically be set at 35 hours per week. It simply means that, beyond this threshold, the hours worked by employees are overtime and must therefore give rise to salary increases and, possibly, to rest periods.

WORKING TIME: WORKING TIME COUNTING & EXTRA TIME

15/09/2021     

The legal working time in France is 35 hours per week in all companies, regardless of their workforce. This notion of legal duration does not imply that the collective schedule must systematically be set at 35 hours per week. It simply means that, beyond this threshold, the hours worked by employees are overtime and must therefore give rise to salary increases and, possibly, to rest periods.

Thus, the monthly payslip must indicate and remunerate the working time according to a legal method. So, we will see:

  • how to calculate working time;
  • how to deal with overtime.

 

I - WORKING TIME COUNTING

  1. The legal framework for counting working hours

The employer must count the actual working time of the employees, in order to verify that the legal maximum working times are not exceeded and to count the overtime worked by the employees, as well as the rest that they may have acquired. This statement is mandatory, the employer must keep documents available to the labor inspector to verify the working time of each employee.

Working time and overtime are counted as part of the week. The week begins in principle on Monday at midnight and ends on Sunday at midnight (calendar week), unless otherwise stipulated by a collective agreement.

As an exception, certain working time arrangements imply a different counting framework, for example, in the event of the distribution of hours over a period longer than a week.

The count can be collective (when all the employees of a workshop, a department or a team work according to the same collective schedule) or individual (when the employees work different hours). The schedule must be posted at the workplace.

 

  1. Working time

The actual working time is the time during which the employee is available to the employer and complies with his directives, without being able to freely go about personal occupations.

This definition is taken from Article L. 3121-1 of the Labor Code. But it should be noted that there are a large number of cases where the employee finds himself in a situation which does not perfectly correspond to this definition. We will take a few cases below and specify whether or not they should be counted as working time :

  • Travel time between home and work: business travel time to get to the place of performance of the employment contract is not actual working time.

However, the solution is the opposite if during this period the employee cannot freely go about his personal occupations. This is the case when, to return to his home in order to carry out an on-call duty, the employee is required to use the company vehicle, making the shortest trip, over a limited time slot, and without being able to transport of a foreign person to the company.

In the event that the normal journey time between home and the usual place of work is exceeded (due to employer requirements), it must be compensated either in the form of rest or financial which is determined by agreement of the company or establishment or, failing that, by convention or branch agreement.

  • Travel time in the company: the time required to get to the workplace after entering the company (even if the employee is required to wear work clothes) does not constitute actual working time if, during this period, the employees are not available to the employer.

On the other hand, when employees are likely to be approached by customers, travel time then becomes actual working time.

  • Break time: breaks are not considered as paid work provided that employees take their break in a room separate from the workshops and that they are not subject to any intervention by the employer. As such, it does not matter that employees cannot leave the premises of the company.

The obligation to be reachable at all times on his professional mobile phone, including when leaving a post, is not enough to reclassify break times as actual working time.

  • Dressing and undressing time: for employees who must wear work clothes, dressing and undressing time does not constitute effective working time, unless a company agreement or a convention or a branch agreement provides for it.

The dressing and undressing time must give rise to compensation in the form of rest or in a financial form if two cumulative conditions are met:

  • wearing work clothes is compulsory;
  • dressing and undressing must take place in the company or at the workplace.
  • On-call time: the Labor Code (art. L. 3121-9) defines it as follows: "A period during which the employee, without being at his place of work and without being at the permanent and immediate disposal of the employer, must be able to intervene to accomplish work in the service of the company". The duration of this work is considered as effective working time.

The on-call time presupposes that the employee is not present at the workplace.

The on-call period necessarily entails the granting of compensation either in financial form or in the form of rest. The amount or volume of this compensation is set by the collective agreement or, in the event of unilateral set up, by the employer.

  • Professional training: here is what is written in the Labor Code (art. L. 6321-2): "Any training action which conditions the exercise of an activity or a function in application of an international convention or legal provisions and regulatory (compulsory training) constitutes effective working time".

In practice, other training actions (not compulsory) also constitute effective working time with the exception of:

  • training actions determined by collective company agreement or, failing that, branch which can take place outside working hours;
  • in the absence of a collective agreement, but with the agreement of the employee, training actions that can take place outside working hours, up to a limit of 30 hours per year and per employee.

In addition, under certain conditions, employees can use their personal training account (CPF) to follow training during their working time. The hours devoted to training during working time then constitute actual working time and give entitlement to continued remuneration.

 

  1. Maximum times, breaks and rests
  • Maximum daily duration: the effective daily working time performed by an adult employee (from the age of 18) cannot, in principle, exceed 10 hours.

However, in the event of increased activity, exemptions are possible depending on contractual provisions or, in the absence of such provisions, with the authorization of the labor inspector.

  • Daily minimum rest: employees are entitled to a daily rest of a minimum duration of 11 consecutive hours which take effect at the end of the employee's service.

Here too, exemptions are possible either with the authorization of the labor inspector or in application of contractual provisions.

  • Daily break time: as soon as the daily working time reaches 6 hours, the employee is entitled to a break of at least 20 consecutive minutes. A company or establishment agreement or, failing that, a convention or branch agreement may set a longer break time.

This break most often corresponds to the lunch break, however, in companies that practice the full day, it is customary for the meal break to last between 1/2 hour and 1 hour. Note that occupational medicine advises not to go below 45 minutes.

  • Maximum average weekly duration: for an adult employee, the weekly working time calculated over any period of 12 consecutive weeks cannot exceed 44 hours. Derogations are also possible in this area.

 

  • ​​​​​Absolute maximum weekly duration: the working time cannot exceed 48 hours during the same week. This limit is assessed over a calendar week, from Monday to Sunday. In the event of a dispute, the employer bears the burden of proof.

A request for exemption is possible from the labor inspectorate. The “DREETS” can authorize a company to derogate for a time limited to the absolute maximum weekly duration, but only in the event of exceptional circumstances causing temporarily an extraordinary additional work and without the weekly duration being able to exceed 60 hours per week.

 

II - EXTRA TIME

  1. The overtime count

Overtime is the working hours that are worked beyond the legal working time (35 hours per week in most cases) or the time considered to be equivalent.

The count is done per week. The Labor Code defines it as starting on Monday at midnight and ending on Sunday at midnight. A company or establishment agreement or, failing that, a branch agreement, may retain another period of 7 consecutive days to define the week.

There are exceptions to this method of counting in the event of working hours being arranged over a period longer than a week or a flat-rate agreement in hours over the month or over the year.

  • Actual working time: overtime must correspond to the actual working hours performed by an employee (working time, delegation hours of staff representatives and union representatives, periods of intervention of employees placed on call, etc.).

It should be noted that paid vacation, statutory holidays, sick leave, etc., are not considered as actual working hours and therefore do not enter into the calculation of overtime.

  • Proof of overtime: an employee can claim overtime payment only if the working hours beyond the legal duration have been completed at the employer's request. But it is enough that the employer has tacitly admitted its realization. There is tacit acceptance when the employer has not objected to the performance of overtime. In this case, the employee must demonstrate that the employer was aware of the overtime worked.

 

  1. Payment and tariff of overtime

Overtime must be paid as working hours with the corresponding surcharges. Remuneration in the form of bonuses is prohibited.

Note: the remuneration corresponding to overtime benefits from a reduction in employee contributions.

In the absence of a collective agreement, the rate of increase for overtime is 25% for the first 8h (from the 36th to the 43rd) and 50% beyond 43h per week. However, the rate of increase for overtime may be fixed by company or establishment agreement or, failing that, by branch agreement, it cannot be less than 10%. The company can negotiate the rate of the mark-ups regardless of what the industry agreement provides.

The remuneration taken into account for the payment of overtime consists of the employee's actual hourly wage and benefits in kind. Bonuses constitute an element of salary, when they correspond to work provided by the employee or when they are inherent to the nature of the work (bonuses for danger, cold, insalubrity, individual performance bonuses, etc.).

 

  1. The annual quota of overtime

The volume of the annual quota is set by collective agreement of a company or establishment or, failing that, by convention or branch agreement. In the absence of a collective agreement, the employer must apply the regulatory quota of 220 hours per year and per employee.

The conditions for completing overtime worked beyond the annual quota are determined by a collective company or establishment agreement (failing that, by a branch agreement).

In the absence of agreement, the employer can still exceed the quota, but companies with at least 50 employees have to consult the CSE for prior advice.

Hours worked in excess of 35 hours per week or 1,607 hours per year in the event of an arrangement in working time over the year should be charged against the annual overtime quota. However, certain overtime does not have to be charged to the quota. This is the case, for example, of overtime justified by urgent work the immediate execution of which is justified by rescue, prevention or repair of certain accidents.

 

  1. Refusal by the employee to work overtime

The employer's decision to resort to overtime within the limit of the quota and because of the needs of the company does not modify the employment contract. It is therefore binding on the employee. Except in special circumstances, if the person concerned refuses to work overtime, he is committing a fault which may be penalized.

 

  1. Compulsory counterpart in hours of rest

The employer must grant compulsory compensation in time of rest to each employee who works overtime beyond the annual quota. However, senior executives and employees under a fixed-rate agreement in days or hours over the year are excluded from the benefit of this mandatory consideration.

The rate of the mandatory compensation in rest hours is determined by company or establishment agreement or, failing that, by convention or branch agreement. This rate cannot be less than 50% for companies with 20 employees or less and 100% for companies with more than 20 employees.

In the absence of a collective agreement, the employer applies the rates of 50 or 100%, depending on its workforce. The consideration is in addition to the payment of overtime.

The rest gives rise to the same remuneration that the employee would have received if he had completed his work.

This is a very broad topic, which we will certainly discuss again later. In the meantime, don't hesitate to contact us if you have specific questions!