The New Impact of Employees’ Health on EU and French Employment Law. By François Berbinau

For more than a decade now French employment law on working hours has considerably changed through legislative measures and case law. It all started in 1998, when French lawmakers decided to reduce the 39-hour work week to 35 hours per week.1 The then Socialist government thought this reform would be regarded as a significant milestone. The endless political controversy it has generated has led to numerous amendments of this pillar of French Socialists’ ideology with majorities com­ing and going. But from a purely legal standpoint, and sometimes under the influence of the EU, French employ­ment law on working hours has suffered from multiple changes, adjustments and « clarifications, » which have
led to a very complex and much criticized system, hardly secure and practicable for most mid-sized and small companies. Now, while everything in that system was revolving around the working time, for a couple of years, under the influence of both European and French courts, players have started considering it from another angle:
the protection of employees against undue influence of their work on their private life and general health. The safeguard of employees’ health and private sphere has become a key issue in recent developments in European and French employment law on work time and other topics. Below are some topical examples of the practical consequences of this recent trend.

Limitation to the Use of the « Cadre Dirigeant » Status

The « Cadre Dirigeant » (executive manager) status sets an exception to the general French employment law principles on work time. Thus, the executive managers are not subject to the work time regulations; in particular they are not affected by (i) the 35-hour act and payments of overtime hours, (ii) nor by any limitation on daily or weekly work time, nor (iii) the obligation to benefit from a daily and weekly rest period.

Pursuant to article L.3111-2 of the French Labor code the executive manager status can be defined based on a combination of three criteria: (i) they bear many respon­sibilities so important that they need considerable inde­pendence in their time schedule, (ii) they are able to make decisions in the most autonomous way, and (iii) their remunerations are within the highest levels of the remu­neration rankings of the company.

This status potentially allows employers to expect unlimited working hours from their executive managers. Therefore, judges consider that it can only apply to a very limited number of executives who are the real managers of their company. And they are concerned that other executives lower in the hierarchy, because they are bound by this status, be led to give priority to their work to the detriment of their health and private life.

By two recent decisions the Cour de cassation2 has thus restricted the use this status. In the first decision the French Supreme Court held that the status of executive managers is not strictly dependent on certain fixed crite­ria such as the existence or lack of « an express agreement between the employer and the employee/’ or the ranking of the employee in the applicable collective bargaining agreement job classification.3 Therefore, the French Su­preme Court called upon courts addressing the issue on the merits to determine in concreto the employee’s real
position in the company.

In the second decision the Cour de cassation has re­called the test for the status to apply and it has come to the conclusion that « these cumulative criteria imply that executive managers are only those who participate in the company’s management. »4

Therefore an executive manager is an employee who participates in the creation of the company’s financial,
economic and social policy.

This case law raises serious concerns for employers who are used to applying the status of executive manag­ers to avoid paying overtime hours to certain of their executives, though they are not necessarily involved in the management of the company. In case these employees, abusively branded as « executive managers,’1 would suc­cessfully challenge their status, they would be entitled to the payment of all the overtime above 35 hours per week over a period of five years. Since the burden of proof lies both on the employee and the employer, the latter will need to bring to the court a clear proof of the hours ef­fectively done by its employee. And there is the catch, because employers typically do not keep track of the time spent by their executive managers. Concerns about the impact of work time on em­ployees’ general health also impacted another execu­tives’ status used to avoid paying overtime hours: the « forfait-jours. » …