Media worldwide – and especially in the US – have this week been reporting a new French law that supposedly prohibits employees from answering emails after 6 pm.
The reporting on this issue has been misleading, however: there is no such new law in France.
In fact, what the media has reported as a change in legislation is simply an amendment to the national SYNTEC Collective Bargaining Agreement, which was agreed between the relevant employer and trade union organizations on April 1, 2014. The amendment has not yet been extended by ministerial decree to all companies falling within the scope of the Syntec CBA.
Despite the media hype, this amendment does not affect all French employees, but only those who work under the SYNTEC CBA and who are subject to a specific working time scheme known as the "convention de forfait jours."
Further, the amended CBA does not prevent employees from checking their email after 6 pm. What it does do is say that employees must disconnect from remote working devices during mandatory rest periods and employers must ensure their employees are able to disconnect.
The SYNTEC CBA applies to many technology companies, which employ a large number of executive employees under the "convention de forfait jours" scheme. Under this scheme, an individual's working hours are not tracked by hours; instead they work a predefined number of days per year (218 days) and their working hours are not calculated, thus excluding payment of overtime hours during those 218 days.
The requirement for the amendment to the SYNTEC CBA was triggered by a decision of the French Supreme Court in April 2013 (see our reports in Be Global May and December 2013). In its decision, the court held that the part of the SYNTEC CBA permitting working time based on a predefined number of days per year, rather than setting a weekly/monthly limit (e.g. 35 hours / week), was not compliant with EU law. In particular, the court was concerned that there was insufficient protection of employees’ health and safety built into the CBA (since they could “overwork” excessively during those 218 days).
April 2014 amendment: greater employee protections
The recent amendment to the SYNTEC CBA addresses the problems with the CBA pointed out by French Supreme Court. The amendment maintains the 218-day working time arrangement, but contains the following main requirements (which provide greater employee protection) for such an arrangement to be valid:
- The 218-day arrangement is only permissible for an employee whose position is at least at level 3 of the executive classification (cadre), or whose annual remuneration is more than twice the social security cap (2 x €37,548 = €75,096) or who is a corporate officer also holding an employment contract.
- Also, the employee must have annual remuneration of at least 120 percent of the CBA minimum for his or her job grade, on the basis of the 218-day arrangement or on the basis of a company's internal forfait-jours arrangement (where the forfait-jours scheme is also implemented by a company-level agreement).
- The employee must be in a role that has a large degree of autonomy and be fully responsible for the time he or she dedicates to work. The employee must enjoy a large degree of latitude in organizing work and managing working time.
- An employee must enter into an individual agreement to work on the basis of forfait jours, so this should be included in the employment contract or an amendment to it.
- The company must implement a tracking tool in order to count days worked and days off. This tool should be objective, reliable and also provide for the employee's input. To this end, the company should maintain a record of the number and dates of days worked; days off; paid leave; CBA leave days and rest days.
- Minimum rest periods of 11 consecutive hours per day and 35 consecutive hours per week continue to apply. These limits are not intended to set regular 13-hour working days but to impose a maximum working day.
- The amendment to the CBA does not specify that employees may not check their email after 6 pm. What it does indicate is that employees must disconnect from remote working devices during rest periods. Therefore, employers should ensure that necessary means are in place to ensure employees can log off from these devices remotely but there are no specific practical requirements which the amendment stipulates must be put in place to ensure that this happens. Some employers have systems in place, for example, which mean that external work systems are inaccessible during rest periods so that while emails can be sent, they cannot be read outside working hours.
- The company must implement a separate tracking tool to ensure that daily and weekly rest periods are adhered to.
- Employees can renounce their right to rest days if the company pays increased remuneration (20 percent minimum up to 222 days and 35 percent beyond), subject to an upper limit of 230 days of work per year.
- At least twice a year, the employee's workload must be reviewed in an individual meeting. The employee must keep the employer informed about events that unusually increase the workload, and the employer must respond within 8 days setting out a proposed solution. The health and safety committee, or where there isn't one, the staff delegates, must be informed once a year about the number of reports received as well as the remedial measures taken.
- Each year, the works council must be consulted on the use of the 218-day arrangement as well as on the tracking tools in place to monitor workload. This information is transmitted to the health and safety committee and will be held on the social and economic data base.
- The employee may ask for an additional medical checkup.
The amendment to the SYNTEC CBA will come into force on the first day of the month following publication in the Official Journal of Ministerial Extension Decisions. Once published, companies which have internal 218-day arrangements (that is, a company-wide CBA on the 218 working day arrangement) in place will have 6 months to alter their arrangements to comply with the amended provisions. For companies without such internal arrangements or without union or staff representatives, the new requirements will apply immediately on publication of the decision.
For more information, please contact Frédérique Sallée.