Death, taxes…and French working time disputes!
Cass. soc., 24 January 2024, n° 22-19.890
Death, taxes… and French working time disputes!
A recent French Supreme Court ruling on forfait-jours arrangements that flew somewhat under the radar gives an example of how French employers may defend against overtime claims.
Forfait-jours is a day-per-year working time arrangement under which working time is quantified in days instead of hours. In a nutshell, forfait-jours employees work up to a maximum of 218 days per year, are not entitled to overtime hours regardless of the number of hours worked (similar to US exempt employees) and are entitled to approximately ten extra rest days per year.
Forfait-jours arrangements are subject to a series of conditions:
is the industry-wide or in-house collective agreement authorizing the forfait-jours arrangement compliant with the requirements set by law?
is the employee eligible to such working time arrangement?
has the employee's consent to the forfait-jours scheme been duly materialized in writing?
in practice, is the number of days worked by the employee properly monitored?
have the applicable mandatory monitoring measures aimed at ensuring a reasonable workload, the employee's work/life balance and protecting the employee's health been effectively implemented?
Employers sometimes fail to comply with said conditions, opening the door to overtime claims. However, if the employee successfully obtains overtime payments on this basis, the employer may offset the amount awarded to the employee in overtime by claiming reimbursement of the extra paid rest days granted under the forfait-jours arrangement.
In the matter at hand, the employee had successfully challenged his forfait-jours arrangement because, among other things, the employer had failed to consistently conduct the mandatory biannual forfait-jours meetings provided under the applicable CBA and was therefore awarded approximately EUR 25k in overtime by the court of appeal.
The court of appeal also rejected the defendant's counterclaim aimed at obtaining reimbursement of the extra paid rest days granted to the employee under the forfait-jours arrangement because this claim had not been raised by the employer before the first instance employment court.
The French Supreme Court disagrees: because the defendant's counterclaim is sufficiently related to the employee's original claims, it can be raised for the first time before the court of appeal, in accordance with Articles 567 and 70 of the French CPC.
Although not ground-breaking, this ruling is a good reminder that employers are not toothless in the context of forfait-jours disputes.
Source : Cour de cassation, chambre sociale, 24 janvier 2024, n° 22-19.890