In these two series of judgments, the employers concerned had nevertheless put in place control mechanisms, which were however not sufficient to protect him from any condemnation.
The employee may claim payment for overtime worked if the performance of such hours was made necessary by the tasks entrusted to him.
Soc. Nov. 14, 2018, n°17-20.659 – Soc. Nov. 14, 2018, n°17-16.959
The overtime scheme applies to all employees, with the exception of employees on an annual flat rate in days and those who are senior executives.
In principle, any hour of work done 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 this has been accomplished at the request . or on behalf of the employer .
In the absence of express prior agreement from the employer, the employee can always claim the payment of overtime, if he demonstrates that he has worked with the at least implicit agreement of the employer (Cass. soc. 20-3 -1980 No. 78-40.979).
This implicit agreement can, for example, be retained when the employer is aware of the overtime worked by the employee and does not oppose it (Cass. soc. 2-6-2010 n° 08-40.628).
In two judgments delivered on the same day, the Court of Cassation specified that the employee may also claim the payment of overtime hours when their performance has been made necessary for the performance of the tasks entrusted .
In practice, the employer must therefore ensure that the workload he entrusts to the employee is adapted to the employee's work schedule.
It should also be noted that, in these specific cases, the contractual obligation of the employee to seek the prior agreement of his employer on the performance of overtime and the opposition of the employer to the performance of such hours , were considered indifferent.
Burden of proof for the monitoring of working time for employees on a daily rate
Soc. Dec 19 2018, n°17-18725
It is the employer's responsibility to provide proof that he has complied with the stipulations of the collective agreement intended to ensure the protection of the health and safety of employees subject to the fixed-rate working days regime.
In this case, Mr. Y, Senior Commercial Director, notably challenged the validity of the fixed-rate agreement in days to which he was subject, considering that his employer had not complied with the provisions of the collective agreement allowing the monitoring of his charge. of work.
Validating the reasoning of the judges on the merits, the Court of Cassation notes that, in the context of the execution of the fixed-rate agreement in days, the employer did not provide proof of effective control of the workload. of the employee, nor of the extent of his working time.
If the employer fails to provide this proof, the fixed-rate agreement in days is without effect , so that the employee is entitled to request payment for his overtime.
