The introduction of a 'new' French working time regulation, apparently forbidding employees from answering emails after 6pm, has been creating a media storm.
Contrary to misleading reports, it is in fact only an amendment made to the national SYNTEC Collective Bargaining Agreement (CBA) on 1 April 2014 that triggered the confusion.
The amendment affects employees in the technology and consultancy sectors including French employees of Google, PwC, Deloitte and Facebook; only those who work under the SYNTEC CBA and who are subject to a working time scheme known as the 'convention de forfait jours'.
It gives employees respite from the growing trend of the modern day 24/7 working regime by simply enabling them to disconnect from any mobile device outside of working hours, without being considered at fault.
Overworking non-compliant
On 24 April 2013, the French Supreme Court held that the provisions of the SYNTEC CBA - which allow working time to be based on a maximum number of days per annum, 218 days, instead of weekly limits on working time - was not compliant with the European Working Directive. This cast doubt on the level of health and safety protection employees had under the current CBA, since there was significant opportunity to 'overwork' during those 218 days.
The decision to amend the SYNTEC CBA generates significant changes for companies within the technology industries, owing to the vast numbers of individuals employed under the 'convention de forfait jours' scheme, under which, individual working hours aren't recorded by hours but by the predefined number of days worked per year (218 days). In addition, their working hours are also not calculated, creating a major disconnect between working time and working hours, which excludes them from payment of overtime hours during those 218 days.
The April 2014 amendment
The amendment provides additional employment protection for employees. Employers covered by the SYNTEC CBA can continue to apply the forfait jours (218 fixed working days) arrangements. However, employers must adhere to certain requirements if they are to mitigate any risk of health and safety claims, overtime and/or damages being brought against them.
To benefit, employees must:
- have a large autonomy in terms of their initiative and assume full and entire responsibility for the time they devote to undertaking their roles;
- have a large latitude in the organisation of their work and the management of their time;
- be (i) at least at position three of the classification grids for executive (cadre) level staff or (ii) have an annual remuneration in excess of twice the annual social security cap (currently 2 × €37,548 = €75,096) or (iii) be officers of the company.
- Employees must enter into an individual agreement to work on the basis of forfait jours (i.e. to include in the contract), clearly stipulating why the employee is considered to be autonomous in the organisation of their working time and set out the nature of the role justifying the recourse to forfait jours; number of days worked per annum (maximum of 218); remuneration, which must be at least 120% of the minimum levels provided under the collective bargaining agreement for this grade, assuming 218 days worked per annum; and number of meetings per annum at which workload will be reviewed (at least twice a year).
- Employees can relinquish rights to additional rest days allocated to reach maximum number of working days per annum, provided they're paid extra for these days (+20% for up to a maximum of 222 days worked per annum and +35% for days in excess).
- The overall minimum rest periods of 11 consecutive hours per day and 35 consecutive hours per week continue to apply (with an obligation to not use electronic devices to work during such periods).
- Employees must regularly inform employers of events which significantly increase their workload. Should this happen, employees can send their employers an alert. The employer must respond within eight days, setting out measures it'll put in place to accommodate the situation. Health and safety committees must be informed once a year in relation to number of alerts received.
- Collate an annual report on the organisation of the working time; length of business trips; individual workload; length of working days; and the number of days not taken as additional rest days.
- At the request of the employee, employers must put in place a specific medial visit for employees on forfait jours arrangements.
Employees who work remotely
Employers must ensure that employees working autonomously can disconnect from the remote communication tools given to them by the employer. The new agreement doesn't stipulate that employees must disconnect after regular working hours and certainly not after 6pm.
The best solution is to allow employees subject to 'fixed working days' the opportunity to make their own decision, making it clear that should they wish to disconnect, they will not be considered at fault.
Employees remain subject to the mandatory minimum 11-hour daily rest period and although an employee may not legally work more than 13 hours, they should be given autonomy to organise themselves however they deem fit.
Ultimately, there's no mandatory obligation, merely a provision to safeguard compliance with the constitutional right to rest following a maximum 10 to 13-hour working period. The 'fixed working days' mechanism, which only exists in France, is complex and innovative. Even in countries where working time regulations are less constraining than in France, there's no system that calculates working time in working days to adapt legislation to a pragmatic new way of working.
In an ever expanding world of social media, 24-hour breaking news and daily technological advancements, the need for employees to take a rest and disconnect themselves from time to time is not only mandatory but also necessary - it is by no means a faux pas.