The risk incurred by employers who neglect to monitor the working hours of their fixed-term employees

Day work, like incapacity in particular, is constantly the subject of jurisprudence which, over time, provides a framework for everyone's responsibilities, especially those of employers, and avoids the pitfalls that are not uncommon for those who know (or can...) the consequences. We take a look at three recent rulings.   In the absence of workload monitoring, the fixed rate is null and void. In principle, the employer is obliged to check regularly that the workload of an employee on a fixed number of days over the year is reasonable, and that the employee's work is well distributed over time. This is a provision of public policy. An initial ruling on January 10, 2024 reminds us that in the event of an employer's failure to comply with the suppletive provisions of the French Labor Code in this area, the fixed-rate contract must be considered null and void. In this case, the employee argued that :

• The employer had not set up any genuine control documents,
• The Company had not ensured that her workload was compatible with her weekly and daily rest periods,
• No annual meeting had been organized to monitor the fixed number of days (nor any arrangements for the right to disconnect).

Arguments accepted by the High Court, which thus considered the employee's claims to be well-founded.   Repeated breaches: impossible to justify and repair after the fact In a second case from January 10, 2024, an employee also complained to his employer:

• Failure to monitor workload on a regular basis,
• Failure to organize annual performance reviews,
• Exceeding maximum working hours,
• And the number of days worked under the fixed-rate agreement.

His appeal was dismissed on the grounds that :

• The employer justified internal operating constraints: the resignation of its Managing Director on December 31, 2018, and the new Operations Director taking up his post on January 21, 2019, which explained the postponement of the employee's 2018 interview date to March 6, 2019.
• The employer had attempted to make up for its shortcomings over 2016, 2017 and 2018, by allowing the employee to recover or be paid for the days by which the fixed-rate contract was exceeded from one year to the next; from which the Court of Appeal had concluded that "the employee cannot say that his employer did not keep a close eye on the number of days worked".

However, the Court of Cassation censured the Court of Appeal, which had noted breaches of the weekly rest and fixed-rate overruns over three years (in addition to a warning which apparently remained unanswered), with the result that the employer, who had therefore failed to put in place measures to remedy in good time the workload incompatible with reasonable working hours of which he had been informed, had breached his legal and contractual obligations. In the light of this decision, we need to consider whether employers can make up for repeated breaches of their monitoring obligations after the event. This ruling would seem to indicate that it is impossible to make up for such breaches once they have occurred, unless the employer can justify having remedied the employee's warnings in good time on each occasion. Which was precisely not the case here.   In the event of a dispute, a table corresponding to a weekly addition of alleged overtime hours may suffice for the employee. As soon as the fixed-rate day agreement is considered null and void, the employee's working hours must be counted in accordance with ordinary law, i.e. 35 hours per week; he may therefore claim overtime pay for hours worked in excess of this figure. However, on January 10, 2024, in a third case, the Social Division of the French Supreme Court (Cour de cassation) issued a reminder of the conditions governing the division of evidence in claims on this subject. In particular, it considers that the production by the employee of a table corresponding to a weekly addition of alleged overtime hours, even without a daily breakdown and without any indication of working hours, constitutes the presentation of "sufficient elements" to enable the employer to respond. Thus, in the absence of a response from the employer (notably in the form of a contradictory table), judges will consider that the employer has failed to provide proof, and may uphold the employee's claims on the basis of his declarative table. We can therefore imagine the embarrassment of an employer who has not kept track of working hours over the year, and who finds it practically impossible to justify this... Above all, we can appreciate the significance of this case law, which does not clearly state the position taken by judges from now on: a document of no value whatsoever, hastily drawn up without any particular work or sincerity, is more than enough for the employee to justify his claim. What we have to judge is this clarity, since the Court does not dare to state so frankly that the burden of proof now lies entirely with the employer. We would have liked a little more sincerity from the supreme court, as this embarrassment hardly masked the awareness of a kind of reversal and a new full and sole responsibility placed on the employer, again and again. In conclusion, these three rulings handed down on January 10, 2024 provide an opportunity to reiterate the consequences of failing to keep track of the working hours of an employee on a fixed annual number of days, who will be able to claim the nullity of the latter and, where applicable, seek payment of numerous hours of overtime on the basis of a simple declaratory table, to which his employer will most of the time find it extremely difficult to respond. It should be remembered, however, that the nullity of a fixed day rate does not ipso facto entail the payment of overtime. In this sense, there may be nullity, but no condemnation relating to the hours claimed if they are not supported by a document justifying them, and to which the employer would not have been able to respond. Nullity of a package does not therefore mean payment of overtime, contrary to what is generally implied.