French employees do not have to disconnect their remote electronic equipment at 6pm

July 2014 | EXPERT BRIEFING | EMPLOYMENT LAW

financierworldwide.com

Numerous press outlets had a good laugh last month at the alleged obligation imposed on French employees to disconnect from remote communication tools overnight and at weekends. Although not entirely wrong, the facts must be put right.

To explain the context, those employees who may freely organise their working time may work a fixed number of days per year – often 218 days – irrespective of the number of hours worked during the day or the week, subject only to a mandatory rest of 11 hours at night and 35 hours at the weekend (11 hours at night and one day, generally Sunday).

This is the theory. However, European Charters and Treaties require that a sensible balance between work and private life is maintained. Night rest and weekend breaks must be preserved to ensure the employees’ fundamental right to health and rest, a difficult exercise for those who work in international groups and who are based in France, while their direct managers work in the US or in Asia, for instance. Nevertheless, working a fixed number of days per year should not result in 60-hour weeks or more. This has indeed been the unexpected consequence of the introduction of the 35-hour week: whilst ordinary employees work 35 hours or benefit from additional days off, senior management sometimes work endless days and weeks to accomplish ‘a mission’.

Under pressure from the European authorities, the French Supreme Court (Cour de Cassation) held on 29 June 2011 that this computation of the working time can only be valid on condition that, inter alia, an applicable collective agreement provides for enforcement mechanisms ensuring that companies comply with the maximum duration of work and the daily and weekly rests.

In line with this decision, the Cour de Cassation successively ruled on the validity of some sector-wide collective bargaining agreements, deciding whether their provisions were sufficiently precise to ensure that companies respect the conditions of this type of working time. On 29 June 2011, it had ruled that the agreement for the metals industry was compliant in imposing methods for the protection of the health and safety of those employees concerned; but later on, it held several sector-wide collective bargaining agreements to be non-compliant, such as those of the chemicals industry, wholesale trade and garden centres. On 21 March 2012, it held that the collective bargaining agreement for research & development offices, consulting firms and engineering firms was also non-compliant.

The invalidity of the sector-wide collective bargaining agreement on this subject – in the absence of a valid in-house collective agreement – invalidates the duration of work of the employees concerned, irrespective of whether or not the employees accept their working time (in principle, in France an employee may not validly contract out of benefits deriving from the law or a collective bargaining agreement).

As a result, even if signed by the employee, the clause of the individual contract of employment is null and void, and the employee is deemed to be working under a 35-hour-a-week scheme. The consequences are drastic for companies as the employee is then entitled to payment of overtime above 35 hours per week (with a three-year time bar). Of course, the financial risk is enormous, particularly as this computation of the working time applies to employees of a certain level, often with a substantial remuneration, and whose duties imply a freedom in the organisation of their working time (sales representatives, managers, etc.) that makes it very difficult for the employer to bring evidence of the actual time worked to fight the employee’s claim for payment of overtime.

It is in this context and to alleviate the risks of litigation that the labour unions and corporate representatives of the research & development offices, consulting firms and engineers sector signed a collective agreement. Once approved by the Labour Ministry, its provisions will bind all companies in that work sector. Pressure was indeed high to find a workable solution considering the large number of employers and employees bound by this collective bargaining agreement. It should be noted that, in France, an employer does not have the power not to ‘recognise’ a national collective bargaining agreement; it is necessarily bound by its provisions if its principal business falls within its scope. It is the provisions of this collective agreement that have provoked so much press coverage and particularly its imaginative proposal that employees disconnect from remote working tools overnight.

Because a mandatory, minimum 11-hour daily rest should not result in systematic 13-hour days of work, and in order to preserve employees’ health, the collective bargaining agreement provides that the employer must determine the beginning and end of the daily and weekly periods during which employees should be at rest, a period during which there is an obligation for the employees to disconnect their remote communication tools. Of course, this by no means indicates that everyone concerned will leave at 6pm, as was implied by the press. Nor does it mean that companies must shut off all communication devices during this period and that work cannot be done.

Nevertheless, the employer must ensure that employees are able to disconnect during the break period, ensuring that their workload is not such that they have no other option but to work during the break period. At the very least, the employer must discourage employees from replying to work-related emails or telephone calls during this break period.

The obligation to disconnect lies solely on the employees, who freely organise the time during which they perform their work, and, of course, the employer should not obstruct this.

Particularly protective of high-level employees, this collective agreement is however limited to the research & development and consulting firms sector, and will only apply to the companies within its scope once approved by the Labour Ministry. Furthermore, it far from covers all French employers and it is most unlikely that its provisions will be repeated in many industry and service sectors.

To conclude, the very negative and sarcastic press coverage that this agreement initially caused is, in large measure, illegitimate in that it does not concern a million workers in France nor forces anyone to shut off their smartphones and other technical devices at 6pm. It is essentially limited to managers and employees whose job makes it impossible for the employer to record their working time – such as salesmen, for instance. Nevertheless, the pressure to stop management level and itinerant workers from working around the clock is high but it is not French; it is at the very least a European obligation.

Viviane Stulz is a partner at Actance Avocats. She can be contacted on +33 (0)1 44 94 96 00 or by email: v.stulz@actanceavocats.com.

Viviane Stulz

Actance Avocats