France: Proof of overtime – Surprising new rules

Three recent rulings by the French Supreme Court (of July 8, 2020 and September 23) illustrate a new, surprising trend in case law regarding the rules surrounding the proof of overtime.

The French Supreme Court has ruled that an employer who provided employees with timekeeping software implicitly accepts their performance of overtime. The court considered that the employer was thus informed of the hours worked, regardless of the absence of prior authorization from the employer for the performance of these overtime hours.

In another case, the court ruled that overtime recorded on a Word-document table by an employee working at home must be paid by the employer, if it cannot justify the hours worked by the employee.

In the last case, the employee produced in court a very imprecise document stating overtime hours that he himself had worked, in order to justify the numerous overtime hours worked to replace the cook who had been absent for 18 weeks. The first-instance trial judges had noted that this account was particularly vague, mentioning only working hours and never schedules, and that the certificates produced by the employee were just as imprecise.

However, the Supreme Court validated this evidence.

Therefore, when setting up a time registration software, of if there are employees teleworking, it is imperative to include in the manual accompanying the software, or in the agreement or charter on teleworking, a clause specifying that overtime can only be worked after prior express validation by the line manager.

For more information on these articles or any other issues involving labour and employment matters in France, please contact Joël Grangé (Partner) of Flichy Grangé Avocats at grange@flichy.com or visit www.flichygrange.com.