The basic working time arrangement in France is 35 hours per week, and although there are a number of alternative working time arrangements potentially available, this is still the one that applies to the majority of French employees. However, this is not a maximum working week – employees working beyond that amount are entitled to overtime.
Employers must be able to prove the actual number of hours worked by their employees and must therefore ensure such hours are properly recorded. In the absence of proper records, the employer may have difficulties in overcoming a claim for overtime payments made by employees before a court.
In practice, although medium- and large-sized companies generally use automatic systems to record the hours worked, a substantial number of employers in France do not monitor the working time of their employees, which puts them at risk. Although employees actually on the job rarely raise claims for overtime before the courts, such claims are quite common at the time of termination.
And thereby arises considerable difficulty for such employers.
The approach taken by the courts is that the employees have the initial burden of providing evidence to support their claim for overtime, which evidence must be specific enough to allow the employer to respond. The burden then passes to the employer to respond to claim by providing evidence likely to demonstrate the hours actually worked by the employees.
Case law provides examples of the means used by employees to support their claim for overtime payment: a manuscript note including the working hours established by the employees, or a note showing the various travels undertaken by the employee (for example, in the case of travelling sales personnel), supported by witnesses’ testimony, have been considered as sufficient grounds for an employee’s request for overtime payment.
Most employees (usually assisted by their lawyers) also “build” excel tables showing the time they claim to have worked, day by day, over a specific period. These tables are generally very complete and include the fairly complex calculation of the amount payable as overtime. These tables have become habitual and are very “user-friendly”, especially for a court which needs to determine the amount payable to an employee.
In a recent case, the employee provided to the court only very basic documents: no excel table and no testimony. He submitted only his employment contract and his pay slips, showing that he was sometimes paid for 12 hours a day, with no compensation for overtime, while his employment contract provided that he would work 9 hours a day, and compensation would be due from the 10th hour worked per day.
The Court of appeal held that these documents were not sufficient, and that since the employee did not provide a weekly calculation of his working hours, his claim should be dismissed. The French Supreme Court decided otherwise, considering that the Court of appeal’s request was not legitimate. Here, the employer was not in a position to challenge the employee’s claim and therefore it was ordered to pay the overtime claimed by the employee.
So to answer the question in our header, in the case of an employer who does not record working time, the answer will be basically: none. The methods by which an employee can demonstrate an alleged right to claim overtime payment are almost unlimited. It is therefore even more important for employers to make sure that they have at their disposal records, documents, or other means to be able to overcome efficiently such claims (which can go as far as 3 years before the date of the claim).