What is overtime?

Overtime means any work performed, at the employer’s request or authorisation, beyond the daily and weekly limits of normal working hours, as set either by law or by the parties to the employment contract (where these limits are lower).

In principle, the limit to the number of overtime hours is two hours per day.

The working time of an employee, including overtime, may in no case exceed:

• 10 hours per day;
• 48 hours per week.

These thresholds make up the absolute limits in terms of working hours.

ATTENTION: The courts hold that if an employer disputes the existence of overtime, an employee must prove that it was worked with the employer’s agreement or at the employer’s request. However, the presence of an employer at the workplace at the same time as the employees claiming overtime payment indicates the employer’s agreement with the performance of overtime by the employee.

An employer can set up a system of work sheets to be countersigned by a line manager. These work sheets can then be used as proof of the hours worked by employees.

When can employers require overtime work?

The use of overtime is limited to the following exceptional cases:

• to prevent the loss of perishable materials or to avoid compromising the technical result of the work
  to enable special work to be carried out, such as the drawing up of inventories or balance sheets;
• deadlines, settlements and closing of accounts;
• in exceptional cases which are necessary in the public interest and in the event of events presenting a national danger;
• work undertaken to deal with an accident that has occurred or is imminent;
• emergency work to be carried out on machinery and equipment or work required by force majeure, but only to the extent necessary to avoid serious interference with the normal operation of the establishment.

If, however, the work is spread over more than three days per month, then the notification/authorisation procedure must be applied.

The request must be addressed directly to ITM and must comply with the following formalities: It must contain the exceptional circumstances that justify overtime work and the reasons that may preclude the hiring of additional employees. In addition, it must be accompanied by remarks of the staff delegation and, if there is no staff delegation, by the remarks of the employees concerned.

If the staff delegation, or failing that, the employees themselves, approve the proposal for overtime, then prior notification of the request will be deemed to constitute authorisation.

If the opinion is unfavourable or equivocal, the Minister of Labour will make a decision based on reports drawn up by the Inspectorate of Labour and Mines and the National Employment Agency.

However, no notification or authorisation for overtime is required for:

• work undertaken to deal with an accident that has occurred or is imminent;
• emergency work to be carried out on machinery and equipment or work required by force majeure, but only to the extent necessary to avoid serious interference with the normal operation of the establishment.

Can employees be forced to work overtime?

To address this question, a distinction must be made between full-time and part-time workers.

Full time employees

In principle, it is within the employer’s power of management to decide to work overtime. This implies that an employee’s refusal to work overtime may be grounds for dismissal.

Part-time employees

Part-time employees are not obliged to work overtime.

For part-time workers, overtime can only be worked by mutual agreement between the employer and the employee, within the limits and under the terms and conditions laid down in the employment contract. (The limits, terms and conditions under which overtime may be worked by part-time workers must, where appropriate, be set out in a clause in the employment contract).

Thus, the refusal of a part-time employee to work overtime is neither a reason for dismissal with notice nor a reason for dismissal for gross misconduct.

Do pregnant and breastfeeding employees and apprentices have a specific overtime regime?

Pregnant and breastfeeding employees and apprentices are not obliged to work overtime. They therefore have the right to refuse to work hours in excess of their normal working hours.

How are overtime hours paid?

Overtime must be compensated by paid time off, at the rate of one hour plus half an hour of paid time off for each hour of overtime worked, or credited at the same rate to a time-savings account, the terms of which may be laid down in the relevant collective agreement or in any other agreement between the social partners concluded at the appropriate level.

In undertakings which apply a legal or conventional reference period, overtime recorded at the end of the reference period shall be paid during the following reference period by applying the above rate of increase or recorded at the same rate in a time savings account as referred to above.

“For overtime hours recorded at the end of the reference period, those resulting from failure to comply with the notice periods set out in paragraph 3 of Article L. 211-7 of the Labour Code or from exceeding the limits set out in paragraph 4  (note: as part of each work organisation plan and in compliance with paragraph 1 of Article L. 211-12, hours worked per month in excess of: – 12.5% of the normal monthly working time provided for by law or by collective bargaining agreement where using a reference period of between more than one month and a maximum of three months, – 10% of the normal monthly working time provided for by law or by collective bargaining agreement for a reference period of between more than three months and a maximum of four months.) of the same article, the time of compensation shall be determined in principle according to the employee’s wishes, unless the needs of the department and substantiated requests of other employees of the company oppose it. In this case, overtime not yet paid at the end of the calendar year may be carried over exceptionally until 31 March of the following year.”

If, for reasons inherent to the organisation of the company, compensation cannot be paid according using the methods set or above or if an employee leaves the company for any reason whatsoever before receiving compensation for overtime worked, the employee shall be entitled to payment of his normal hourly wage plus 40% for each hour of overtime.

This 140% is exempt from taxes and social security contributions, except for contributions for benefits in kind on the unpaid overtime.

An hourly wage is obtained by dividing monthly wages by the set figure of 173 hours.

Where the collective agreement applies to a sector, branch or several undertakings, it may lay down the conditions under which subordinate agreements at the appropriate levels may set procedures for implementing the preceding paragraphs.

The overtime scheme does not apply to senior managers, i.e. workers who receive significantly higher remuneration than employees covered by the collective agreement or otherwise, taking into account the time required to perform their duties, where such remuneration is the counterpart of the exercise of genuine and effective managerial power or whose duties involve well-defined authority, a large degree of independence in the organisation of work and a large degree of freedom as regards working hours, and in particular the absence of constraints on working hours.