Patchwork Lawyers’ team wishes you a Happy New Year 2022!

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Relatively unknown, or in any case often misused or misunderstood, the executive officer status deserves to be clarified. A recent judgment of the Court of Cassation gives us the opportunity to shed some light on the subject.

This status is very special because they are not subject to working hours . It is therefore an extremely interesting status for the employer since these high-level employees can work without limit , and without being paid more than the contractually stipulated salary.

The conditions of validity of this statute are therefore obviously extremely restrictive

Article L.3111-2 of the Labor Code provides that:

“Senior executives are not subject to the provisions of Titles II and III. Executives to whom are entrusted with responsibilities whose importance implies great independence in the organization of their employment are considered to have the quality of senior executives. time, who are empowered to make largely autonomous decisions and who receive remuneration within the highest levels of the remuneration systems practiced in their company or establishment. “

A senior executive must therefore meet the following 3 cumulative criteria:

Being entrusted with responsibilities whose importance implies great independence in the organization of their schedule.

To be able to make decisions in a largely autonomous way.

Receive remuneration that is among the highest of the remuneration systems practiced in the company or establishment.

In addition, case law adds a final criterion:

The senior executive must participate in the management of the company.

To retain or rule out the quality of an employee’s executive officer, the judge examines the function that the person concerned actually occupies with regard to each of the cumulative criteria set out above.
It was very recently recalled by the Social Chamber of the Court of Cassation that an Administrative and Financial Director required to respect the same hours as his department, could not validly be a senior executive ( Cass Soc. February 3, 2021, n ° 18-20812 ).

The status of executive officer should therefore be handled with caution and reserved for very high level employees , participating in the management of the company.

Failing that, the manager could have a ruling that he does not fall under this status in which case his working time would be reduced by the judge to 35 hours per week, with the consequence being required to pay all the overtime hours that the employee can prove to have accomplished beyond 35 hours, during 3 years (duration of the limitation period).

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In labor law there are a large number of concepts which are not at all clear. Fortunately, on the contrary, there are obvious facts that it is worth remembering.

A part-time worker can work more than the duration stipulated in his contract

(this is called “additional” hours) but the completion of these hours is framed by a double limit:

No more than 1/10 (or 1/3 in the case of a collective agreement) of the working time.

His total working time must in any case be less than 35 hours.

Practical example – if an employee works 30 hours per week:

If no collective agreement

he will be able to work 3 additional hours per week at most (1 / 10th of 30 hours)

If collective agreement

In any case, he will be limited to 34 hours of work per week and will therefore not be able to perform more than 4 additional hours.

The Court of Cassation recently recalled that if the part-time employee works 35 hours, even once over the duration of the contract, his contract can be reclassified as a full-time employment contract, and the latter can therefore request a reminder of salary corresponding to the difference between his part-time and full-time.

So pay attention to additional hours
because the litigation risk is really not neutral.

Last reminder about part-time work, the minimum duration (except for derogatory collective agreement) is now 24 hours per week, with some exceptions (students under 26 and employees expressly requesting to work less than 24 hours for certain reasons).

L’article An employee who works part time… cannot work full time! est apparu en premier sur Patchwork Avocats.

The loss of a customer does not necessarily mean real and serious economic motive.
We must demonstrate the impact of this loss on the economic equilibrium of the company.

Questions to ask yourself

Can I demonstrate the existence of lasting economic difficulties, at the level of the company or group companies based in France and having the same activity?”
→ If I demonstrate a significant drop in an economic indicator (orders, turnover, etc.) over a period of between 1 and 4 consecutive quarters depending on the workforce of the company, I can lay off for economic reasons.

→ If so, I can invoke the need to reorganize the business and lay off for economic reasons, especially when the business of the company depends on contracts awarded by other companies.

Employees affected

Please note, the dismissal will not necessarily relate to employees working for the lost client.
It is mandatory to apply specific criteria (family responsibilities, seniority, etc.) to all employees belonging to the same professional category.

The order criteria must be applied to all employees of the company, or of each employment area in which a company establishment is located. A more restricted perimeter can be negotiated by agreement.

It is easier to point out proven economic difficulties than a reorganization necessary to safeguard the competitiveness of the company, which is based on foresight.

Companies operating on the basis of markets, which achieve all of their turnover through the provision of services entrusted by contractors, will be able more easily to highlight the fact that their competitiveness depends on a number of sufficient markets to enable them to occupy their entire workforce.

However, the judge will be more attentive and demanding on the anticipatory measures implemented before the dismissal decision is taken (in particular in the context of forward planning of employment and skills).

L’article I lose a client: Can I dismiss for economic reasons? est apparu en premier sur Patchwork Avocats.

The national protocol is clear:

« teleworking time is increased to 100% for employees who can perform all of their tasks remotely. In other cases, the organization of work must make it possible to reduce travel between home and work and to adapt the time spent in the company for the performance of tasks that cannot be performed remotely, to reduce social interactions ».

However, this text, as recalled by the Council of State, is not legally binding (but could be taken into account by the judge if the employee invokes the non-respect by the employer of his safety obligation of result).

An instruction from the Directorate General of Labor of November 3, 2020 sheds useful light by giving examples of situations in which 100% teleworking is not possible such as:
« Managerial functions requiring a minimum presence on site to supervise teams whose activities cannot be carried out remotely »

« activities for which the employee needs to access certain tools, particularly IT, that cannot be accessed remotely »

The instruction specifies that according to the administration, the mere fact of wanting to organize meetings, even managerial ones, cannot justify not teleworking, since these meetings can easily be carried out by audio or video conference.

The instruction also reminds that it is up to employers to determine which tasks can be performed by teleworking

The employer must therefore determine which employees can telework, and in what proportion, and this on the basis of objective criteria, which must be clarified at the request of the labor inspectorate or in the event of a labor dispute.

Finally, it is interesting to note that the aforementioned instruction indicates that if the manager perceives a particular psychosocial risk, recourse to telework or the methods initially adopted may be reviewed.

The employer must therefore skillfully juggle between psychosocial risk and risk associated with working on site.

L’article Home office, obligation or option? est apparu en premier sur Patchwork Avocats.

Interview of labor law expert Laurent Moreuil for french magazine L’Express about tribunal indemnity caps :

Read more : Patchwork Lawyers – L’Express

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