Telecommuting: beware of checks on working hours and compulsory rest periods
The use of telecommuting has intensified since the health crisis.
There are still few rulings from the Cour de Cassation on the subject, but a recent ruling provides an opportunity to look again at the necessary legal framework for the practice, particularly in terms of working hours.
In this case, the issue was related to the proof of overtime hours and compliance with daily and weekly rest periods (Cass. Soc. December 14, 2022, no. 21-18.139 published in the bulletin).
The Cour de cassation recalled that the burden of proof lies with the employer, even when the employee is teleworking.
What were the facts of the case?
The employee held the position of Project Manager in a company operating in the IT sector.
He worked two days a week on site and three days at home.
He killed himself on the way to and from work.
His heirs subsequently brought an action before the industrial tribunal seeking payment of unpaid overtime and damages for violation of the right to rest and the right to private and family life.
The Cour de cassation questioned the reasoning of the Court of Appeal, ruling that the employee’s heirs had provided sufficiently precise information to enable the employer to respond.
On the other hand, the employer did not provide any evidence to show that it had monitored the employee’s working hours.
The Court therefore reaffirmed that the burden of proof is shared in the case of overtime: the employee must provide evidence to make a claim for overtime credible, and the employer must produce evidence to establish the hours actually worked by the employee.
It also points out that the burden of proof rests exclusively with the employer in respect of rest periods.
What does this mean for working hours?
The decision handed down by the Cour de Cassation is in no way innovative, insofar as the employer is still required to monitor the working hours of employees subject to an hourly organization, in accordance with the provisions of the French Labor Code.
However, it is a useful reminder, as decisions concerning telecommuting are still rare.
It is therefore important to be vigilant and to monitor employees’ working hours when they are subject to a working time organization assessed in hours, even for telecommuting employees.
In the case of employees subject to a fixed annual number of days, telecommuting does not exempt the employer from monitoring the employee’s workload.
Non-compliance with working time regulations is the source of many disputes, and it is essential to prevent this by setting up a reliable monitoring system (e.g., a declarative system or automated software), after consultation with employee representatives, if any, and in compliance with regulations on the protection of personal data.
Working hours can also be regulated by means of a company-level agreement on the subject, providing a framework for both monitoring and the right to disconnect.
How can telecommuting be managed?
Telecommuting can be governed by a company agreement or charter, which must comply with legal provisions and collective bargaining agreements, and after consultation with employee representatives, if any.
Drawing up an agreement or charter provides a suitable general framework to which one can refer in the event of difficulties.
In addition to the provisions of the French Labor Code and national inter-professional agreements, certain branches, such as the very recent SYNTEC (Société des Bureaux d’Etudes Techniques) branch, are increasingly adopting agreements on telecommuting, which must be respected.
Even though the organization of remote work is generally perceived as a form of flexibility, it is still governed by the law, and should not be taken lightly.
Our lawyers are at your disposal to help you deal with these labor issues, adapting to the specific constraints of your business in order to limit the risk of litigation.
We therefore invite you to make an appointment with us, so that we can offer you support tailored to your needs. Our meetings can be held face-to-face or by videoconference. You can make an appointment directly online at www.agn-avocats.com.
AGN AVOCATS – Employment law
09 72 34 24 72