Overtime (heures supplémentaires) consists of all hours worked beyond the statutory 35-hour working week. The rules are strictly set out in the Labour Code: calculation, premium rates, annual quota and mandatory compensatory rest. In practice, errors are common, and claims for unpaid overtime are among the most frequently litigated matters before the French labour tribunal (Conseil de prud’hommes).
1. Overtime: definition and scope
1.1 – What counts as overtime?
Overtime covers all hours of actual work performed beyond 35 hours per week, whether at the employer’s express request or with their tacit agreement (Art. L. 3121-28 of the Labour Code).
The employer’s agreement may be implicit: if the employee regularly works beyond 35 hours and the employer is aware of this without objecting, those hours are deemed to have been performed at the employer’s request.
Key point
The overtime regime applies only to employees whose working time is counted in hours. Employees on an annual day-based package (forfait annuel en jours) are not entitled to overtime pay, unless that package is void or unenforceable against them.
1.2 – Overtime and actual working time
Only actual working time is taken into account when calculating overtime. Excluded are: rest breaks, ordinary home-to-work commuting time, on-call periods (except where the employee is actually called out), and time spent changing into work clothes where this has not been classified as working time by agreement.
2. Calculating overtime: basis and premium rates
2.1 – The statutory premium rates
In the absence of a more favourable collective agreement, overtime is compensated at the following rates (Art. L. 3121-36 of the Labour Code):
| Hours concerned | Statutory premium rate |
|---|---|
| 36th to 43rd hour (first 8 overtime hours) | +25% |
| From the 44th hour onwards | +50% |
A sector-wide or company-level agreement may provide for different rates, but may not go below 10%.
2.2 – Basis for calculating the premium
The premium is calculated on the employee’s actual remuneration, not on the base salary alone. It therefore includes all pay components that directly reflect the work performed: base salary, seniority increments, attendance bonuses linked to actual presence, etc. Exceptional or performance-related bonuses are generally excluded.
Worked example
An employee with an hourly rate of €20 works 5 overtime hours in a given week (36th to 40th hour). Each hour is paid at €20 × 1.25 = €25. The additional pay for those 5 hours amounts to €125 (compared with €100 at the base rate).
2.3 – Replacing overtime pay with compensatory rest
A collective agreement may provide that overtime gives rise, in whole or in part, to compensatory rest in lieu of payment (repos compensateur de remplacement, RCR) rather than a cash premium. The rest period must incorporate the premium: one overtime hour at 25% generates 1 hour 15 minutes of rest, not 1 hour.
3. The annual overtime quota
3.1 – Definition and volume
The annual quota (contingent annuel) is the maximum number of overtime hours an employee may work per year without prior authorisation from the labour inspectorate (Art. L. 3121-30 of the Labour Code).
The statutory quota is set at 220 hours per employee per year. A sector-wide or company-level agreement may raise or lower this figure.
3.2 – Hours beyond the quota
Hours worked beyond the quota are permissible but give rise to a mandatory compensatory rest entitlement (contrepartie obligatoire en repos, COR), set by statute at:
- 50% of hours worked beyond the quota in companies with up to 20 employees
- 100% in companies with more than 20 employees
This rest entitlement is in addition to the pay premium and cannot be replaced by a cash payment, unless a specific collective agreement provides otherwise.
Important note
Failure to grant the mandatory compensatory rest exposes the employer to salary arrears claims and damages before the labour tribunal. The right to the COR is subject to a 3-year limitation period running from the date on which the rest should have been taken.
3.3 – Information and monitoring obligations
The employer is required to inform the employee of their right to mandatory compensatory rest as soon as they have accumulated 7 hours beyond the quota. The works council (CSE) must also be informed and consulted regarding the use of overtime beyond the quota.
4. Unpaid overtime: evidence and litigation
4.1 – The burden of proof before the labour tribunal
Overtime disputes are among the most common before the Conseil de prud’hommes. The Court of Cassation has established a shared evidential regime: the employee must first produce sufficiently precise evidence (timesheets, diaries, emails, witness statements) to enable the employer to respond. It is then for the employer to provide contrary evidence (Art. L. 3171-4 of the Labour Code).
Important note for employers
The employer is required to implement a reliable system for recording working time. In the absence of any monitoring system, the evidential balance tips in favour of the employee. The Court of Justice of the European Union reiterated this obligation in a judgment of 14 May 2019.
4.2 – Limitation period
A claim for payment of overtime is subject to a 3-year limitation period running from the date on which the employee became aware of the facts giving rise to the right (Art. L. 3245-1 of the Labour Code). In practice, this means an employee may claim up to 3 years of salary arrears when bringing a claim before the labour tribunal.
4.3 – Void or unenforceable day-based package: reverting to the overtime regime
Where an annual day-based package (forfait jours) is declared void or unenforceable against the employee (for example, due to an invalid collective agreement, absence of workload monitoring, etc.), the employee reverts to the ordinary working time rules. They may then claim payment for all hours worked beyond 35 hours per week, at the applicable premium rates, over the previous 3 years.
5. Special cases: executives, part-time employees and supplementary hours
5.1 – Executives and the day-based package
Executives who have genuine autonomy in organising their working time may be placed on an annual day-based package, which excludes them from the overtime regime. However, this exclusion is only valid if the package has been properly put in place and monitored — and it is precisely on this point that most disputes arise.
5.2 – Part-time employees and supplementary hours
Part-time employees do not work overtime in the strict sense: they work supplementary hours (heures complémentaires), i.e. hours beyond their contractual hours but below 35 hours per week. These are governed by a distinct regime:
- Paid at a 10% premium up to one-tenth of the contractual hours
- Paid at a 25% premium beyond that threshold
- Capped at one-third of the contractual weekly hours
6. Frequently asked questions about overtime
Not necessarily. If the employer was aware that the hours were being worked and did not object, those hours are deemed to have been performed with the employer’s tacit agreement. The mere fact that they were not formally authorised is not sufficient to justify non-payment. The courts have consistently held this position.
Yes, provided a collective agreement so provides. This mechanism is known as compensatory rest in lieu (repos compensateur de remplacement, RCR). The rest period must incorporate the premium: one overtime hour at 25% generates 1 hour 15 minutes of rest, not 1 hour. In the absence of a collective agreement, the cash premium is mandatory.
In principle, no: the annual day-based package excludes time-counting and therefore the overtime regime. However, if your package is void or unenforceable (absence of workload monitoring, insufficient collective agreement, failure to hold the annual review meeting, etc.), you revert to the ordinary rules and may claim payment for all hours worked beyond 35 hours per week over the past 3 years.
The limitation period is 3 years from the date on which the employee became aware of their entitlement. In practice, this allows the employee to go back over 3 years of pay slips. This period applies whether the employment contract is still ongoing or has already ended.
The employee must produce sufficiently precise evidence to enable the employer to respond: timesheets, emails sent outside working hours, diaries, access badge records, colleagues’ witness statements. The employee is not required to provide perfect proof — the judge assesses all the evidence produced by both parties.
Your employment lawyer for overtime disputes
Overtime litigation is technically demanding: qualifying actual working time, navigating the shared burden of proof, calculating arrears over 3 years, and managing the interaction with day-based packages. For employers and employees alike, a precise early assessment of the case frequently makes the difference between an avoidable dispute and costly proceedings.
As specialists in employment law, Patchwork Avocats advises and represents companies, executives and employees in all matters relating to working time and remuneration, both in advisory work and before the labour tribunal.
A question about overtime pay or the compliance of your HR practices? Contact us.
