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).