In the relationship between an employee and his employer, the issues of overtime and paid leave are among the thorniest. They imply that common ground must be found for the particular situations that arise when the employee works longer than they should, and when the employer must pay for rest days. Fortunately, in order to limit abuses and ensure that everyone fully enjoys their rights, there is a clear legislative arsenal to regulate both overtime and paid holidays. Even if they grant a certain power to collective agreements, the laws governing these two concepts, in particular the Labour Code, lay a fair foundation.
General information on overtime in companies
The Labour Code provides for a legal working time of 35 hours per week, i.e. 7 hours per day x 5 working days. The hours worked in addition to these 35 hours are then considered overtime. In a collective agreement used as a reference to manage the company’s human resources, other provisions may be made. The Convention is authorized to provide that the number of hours worked per week is less than 35 hours; But even then, the overtime count does not begin until 35 hours of actual work.
How is overtime counted?
In accordance with articles L3121- of the Labour Code, the legal working time being established on a weekly basis, the calculation of overtime is done on the same basis. By default, the week runs from Monday (00:00) to Sunday (23:59). A company agreement or a collective agreement still has the power to decide on another interval corresponding to the week, provided that the interval covers 7 consecutive days.
Working overtime: who decides between the employer and the employee?
As can be read in some judgments of the social chamber of the court of cassation, the employee is not entitled to decide unilaterally that they will work overtime. Only the employer, in their leadership posture, can choose that the employee work overtime, according to the needs of the company. There is only one condition under which the employee is in a position to claim overtime: that the employment contract has provided for it.
When the manager decides to make an employee work overtime, the latter has the obligation to comply. However, employees have the right to refuse to work overtime if the employer abuses their managerial power. Such abuse occurs when the employer belatedly informs the employee that they will work overtime, when they impose hours of work during the weekend or when previous overtime hours have not received the compensation to which they are entitled.
While similar situations are likely to tarnish the image of the company, leaders must always make communication a lever for developing the employer brand. Discuss with employees whether or not overtime is appropriate, and ensure compliance with regulations. By doing so, you are taking an approach that is fully in the interest of the employer brand.
Overtime: rights, limitations and other provisions of the law that protect the employee
The performance of overtime must not only take into account actual needs, but also be based on certain standards. In addition to the Labour Code, judgments of the social chamber of the court of cassation define the rules to be followed.
Overtime limits
To successfully manage business performance, the employer may need employees to work overtime. After adding the number of hours worked in addition, the employee’s working time must not exceed certain thresholds.
- In a week, no more than 48 hours.
- Over 12 weeks, no more than 44 hours on average per week (here, a branch agreement or a company agreement can set a limit of 46 hours).
- For exceptional needs, no more than 60 hours in a week.
Apart from this weekly limit, an annual threshold is also defined; We are talking about an annual overtime quota. The annual quota is established primarily by a branch agreement or by a company agreement. In the absence of a collective agreement, the default annual quota is 220 hours.
The Social and Economic Council must simply be informed when the overtime worked is within the limit of the annual quota. Beyond that, information and consultation of the council is essential. The council must issue its opinion before triggering overtime hours in excess of the annual limit.
Any company pursuing a strategy to develop its employer brand must put all the chances on its side by respecting these legal requirements. If it makes sure to always accurately calculate the overtime hours of each employee, its team members will have no trouble publishing positive reviews about the company via a platform that trusts reviews about companies or via social networks.
Right to overtime pay and/or compensatory time off
Overtime is not part of the hours for which the employee receives fixed remuneration. The Labour Code incorporates provisions systematically giving entitlement to compensation.
Overtime pay on the basis of a wage increase is one of the methods of compensation provided for by law. Alternatively, remuneration for overtime worked may be compensatory rest.
In all cases, beyond the annual quota, overtime gives entitlement to a compensatory time off (CTO).
Overtime pay: how is the salary increase made?
Several overtime rates of increase are applicable depending on the case.
The gross-up rates to be used to calculate overtime pay
Company collective agreements, industry agreements and conventions are entitled to set a rate, but not less than 10%.
After the calculation of overtime, the rate of increase applies to the remuneration of hours worked beyond the legal duration (or the equivalent duration stated in the agreement or convention).
By default, when the branch agreement or collective agreement has not provided for any rate of increase, two separate rates are used for the overtime wage increase. From the 36th hour to the 43rd hour, the rate of increase for the payment of overtime is 25%. From the 44th hour, the salary for any overtime worked is increased by 50%.
Does the increase only apply to gross salary?
When an employee has worked beyond the legal working hours, you must calculate their overtime according to the standards in force, and pay them by considering most of the bonuses and benefits that make up their actual remuneration. These bonuses and benefits include:
- social benefits and benefits in kind,
- hazard premiums,
- night work premiums,
- performance bonuses,
- etc.
Only professional expenses, basket premiums and seniority premiums are excluded.
Compensatory rest and mandatory time off: how does it work?
To be valid, the replacement of the overtime increase (in whole or in part) by compensatory rest must be part of the provisions of the collective agreement, the convention or the branch agreement. Where appropriate, those provisions shall at the same time specify the period of rest to be granted as compensation for overtime.
The duration of compensatory replacement rest
By default, the duration of compensatory rest granted is determined on the same calculation basis as the increased salary: an hour increased to 25% gives entitlement to a compensatory rest of 1h x 125% = 1h 15 minutes; One hour increased to 50% entitles you to a compensatory rest of 1h x 150% = 1h 30 min.
In the absence of a union delegate, and therefore without an agreement dealing with compensation for overtime, it is up to the employer to define the terms and conditions for granting compensatory rest. Their choices must then be approved by the Social and Economic Council (if there is one).
The duration of the replacement compensatory rest (RCR)
If the overtime worked exceeds the annual quota, to the increased remuneration and/or compensatory rest, the mandatory counterpart in rest is added. CTO is typically equivalent to half the number of hours worked in excess of the quota. For companies with more than 20 employees, CTO = 100% of overtime outside the quota. The conditions and procedures for taking the compulsory counterpart in rest may vary according to the decisions of the collective agreement, the branch agreement or the company collective agreement.
The CTO is a principle of public order, which aims to optimize the well-being of employees. Even if an employee does not claim compensation after working overtime in excess of the annual quota, the manager must remind them of the right to rest they have obtained. This would be a way for the employer to see QWL as a way to retain its employees, by showing them that they care about their well-being.
In the same vein, they would benefit from reminding all employees who do not apply for annual leave of their right to paid leave.
How is overtime counted during paid holidays?
According to a decree of the social chamber of the Court of Cassation. Dating from 2017, days of paid leave cannot be included in actual working time, unless a new law or an agreement contract provides otherwise. No hours of work during paid leave are included in the calculation of overtime.
The remuneration received by the employee, despite an absence from work during paid leave, is based on the legislation governing the well-being of employees. It cannot therefore be used as an argument for triggering overtime, since it does not imply that there has been actual work. However, only hours of actual work are taken into account for the calculation of overtime.
As a scheme for any full-time or part-time employment contract, whether fixed-term or permanent, paid leave follows its own rules.
Number of days of paid leave to which an employee is entitled
All employees under contract are entitled to paid leave. The minimum duration of leave per year is set by the Labour Code.
Paid leave of the employee: how many days per year?
For each month in which they actually worked for the same employer, the employee must be granted 2.5 working days of leave (or 2.5 working days according to the employer’s decisions). For 12 months of work (with a reference period running from June 1st of the previous year to May 31st of the current year), statutory leave is therefore equivalent to 30 working days.
The main leave must be taken between May 1st and October 31st, for a period of not less than 12 working days and not more than 24 working days, splittable at the request of the employee.
For the purpose of calculating the duration of leave, maternity/paternity leave, training leave and other paid leave are considered as actual working time. This rule creates a major difference between the calculation of paid leave and the calculation of overtime.
The duration of leave may be extended
If the employee chooses to split their paid leave, an additional day off is granted if they take between 3 and 5 days before May 1st or after October 31st. For a period of leave greater than or equal to 6 days outside the reference period from May 1st to October 31st, the employee benefits from a supplement of 2 working days. In addition, for each dependent child, the employee receives a bonus of two days of leave.
A collective agreement or a branch agreement may modify the conditions of departure on leave, so that they are more favourable to the employee. The employer establishes, on the basis of the agreement or collective agreement, the order of departures on leave according to the family situation, length of service or professional activity of the employees. It must also ensure that it always has a workforce capable of ensuring the continuity of production and the provision of services in the company. The maintenance of a company’s activity is sometimes precisely among the challenges of recruiting a company, the employer being obliged to respect the paid leave rights of their employees.
How much does the employee receive during their paid leave?
The remuneration for paid leave depends on the method of calculation chosen by the employer, in accordance with the provisions of the collective agreement.
Methods of calculating vacation pay
The indemnity to which the employee is entitled may be calculated by dividing by 10 the total gross remuneration they receive during the reference period. The second method is to pay the employee exactly as if they had continued to work. Depending on the case, the option leading to the higher amount is the one chosen when paying the employee vacation pay.
Overtime and paid leave: is there payment for leave not taken by the employee?
When your employee does not take their days of paid leave acquired during the standard or conventionally fixed reference period, these days are considered lost and there is no compensation. However, for days of RWT (reduction of working time) obtained through overtime, but which the employee chooses not to benefit, there is a possibility of redemption by the employer.
FAQs
How is overtime counted in France?
Overtime is counted in France from the legal working time of 35 hours per week. Any hour worked in excess of these 35 hours is considered an additional hour. The calculation is done on a weekly basis from Monday to Sunday, but a company agreement or a collective agreement may set another interval of 7 consecutive days. The employee cannot unilaterally decide to work overtime, it is the employer who makes this decision according to the needs of the company, unless the employment contract has provided for it.
What are the rights and limitations of overtime in terms of remuneration and compensatory rest?
Overtime in France is limited to 48 hours per week, 44 hours on average over 12 weeks, and 60 hours for exceptional needs. Beyond the annual quota (220 hours by default), they must be compensated by increased remuneration or compensatory rest. The rate of increase is fixed by collective agreement but may not be less than 10%. Overtime pay takes into account all but some bonuses and benefits. Compensatory rest is granted at the same rate as the increased remuneration. The CTO (compensatory time off) is also provided for beyond the annual quota. Paid leave is not included in the calculation of overtime, and its remuneration depends on the method of calculation chosen by the employer, either by dividing the total gross remuneration by 10 or by paying the employee as if they had continued to work. Leave not taken by the employee is considered lost, except for days of RTT which can be bought back by the employer.
