In both sets of rulings, the employers concerned had put in place control mechanisms, which were nevertheless not sufficient to protect him from any conviction.
The employee is entitled to payment for overtime worked if such hours were made necessary by the tasks assigned to him/her
Soc. Nov. 14, 2018, n°17-20.659 – Soc. Nov. 14, 2018, n°17-16.959
The overtime system applies to all employees, with the exception of employees on an annual days-based work schedule and those with the status of senior manager.
In principle, any hour of work carried out beyond the legal duration of 35 hours per week (or the equivalent duration) is an overtime hour which gives rise to increased remuneration, provided that it was carried out at the request or on behalf of the employer .
In the absence of prior express agreement from the employer, the employee can still claim payment for overtime hours, if he demonstrates that he performed them with at least the implicit agreement of the employer (Cass. soc. 20-3-1980 n° 78-40.979).
This implicit agreement can, for example, be considered when the employer is aware of the overtime worked by the employee and does not object to it (Cass. soc. 2-6-2010 n° 08-40.628).
In two rulings issued on the same day, the Court of Cassation clarified that the employee can also claim payment for overtime hours when their performance was necessary to carry out the tasks assigned .
In practice, the employer must therefore ensure that the workload assigned to the employee is adapted to the employee's working hours.
It should also be noted that, in these specific cases, the employee's contractual obligation to seek prior agreement from their employer regarding the performance of overtime and the employer's objection to the performance of such hours were considered irrelevant.
Burden of proof for monitoring working time for employees on a fixed-day contract
Soc. 19 Dec. 2018, No. 17-18725
It is the employer's responsibility to provide evidence that they have complied with the provisions of the collective agreement designed to ensure the protection of the health and safety of employees subject to the fixed-day work schedule.
In this case, Mr. Y, Senior Sales Director, notably contested the validity of the fixed-day agreement to which he was subject, believing that his employer had not complied with the provisions of the collective agreement allowing the monitoring of his workload.
Validating the reasoning of the lower court judges, the Court of Cassation notes that, in the context of the execution of the fixed-day agreement, the employer has not provided proof of effective control of the employee's workload, nor of the extent of his working time.
If the employer fails to provide this proof, the fixed-day agreement is ineffective , so the employee is entitled to claim payment for overtime.
