In relation to reference periods, the following are to be regarded as constituting overtime:
- As part of a flexitime system:
- overtime ascertained at the end of a reference period.
For statutory reference periods of a duration of less than or equal to 1 month, the flexitime system may determine a number of excess working hours that may be carried forward solely to the following reference period, without such hours being classified as overtime.
- Any hours exceeding the applicable daily or weekly maximum limits.
- As part of a Work Organization Plan (WOP):
- hours worked as a result of a change to the WOP that has been made without observance of the notice period of 3 days and increasing the working time initially stipulated,
- Where the reference period exceeds 1 month, monthly working hours exceeding:
- 12.5% of the normal monthly working time laid down by law or by a collective work agreement in the event of application of a reference period exceeding 1 month but not exceeding 3 months;
- 10% of the normal monthly working time laid down by law or by a collective work agreement in the event of application of a reference period exceeding 3 months but not exceeding 4 months.
Consequently, any work done beyond those limits and in compliance with the maximum working limits (10 hours worked per day and 48 hours worked per week) is automatically considered as overtime, without the possibility of recovery within the reference period.
Examples
1) WOP:
With regard to a weekly average of 40 hours per month, the rate of 12.5% is equivalent to 45 hours and the rate of 10% is equivalent to 44 hours.
Every hour worked beyond the average of 45 hours, or 44 hours per month (depending on the duration of the applicable reference period) is to be regarded as overtime, which is to be increased by the compensatory rate of 1.5 in relation to remunerated rest or by the remuneration rate of 1.4, as provided for in Article L.211-27 of the Labour Code.
2) Flexitime system:
- Case 1: One-month reference period with an excess-hour ceiling of 8 hours
Situation: An employee works under a flexitime system providing for a one-month reference period (1 January to 31 January). The normal working time is 40 hours per week.
Breakdown of hours worked in January:
Week 1: 42 hours (+2 excess hours)
Week 2: 45 hours (+5 excess hours)
Week 3: 38 hours (-2 deficit hours)
Week 4: 43 hours (+3 excess hours)
Total excess at the end of January: 2 + 5 - 2 + 3 = 8 excess hours.
Application of the flexitime system:
- The 8 excess hours may be carried forward to the following reference period (February);
- No overtime arises, as the ceiling of 8 hours has not been exceeded.
If the employee had worked an additional 2 hours (i.e. 10 excess hours in total):
- The 8 excess hours may be carried forward to the following reference period (February);
- The 2 hours exceeding the 8-hour ceiling would be classified as overtime and could not be carried forward. They would only give rise to compensation if performed at the employer’s request or with the employer’s prior approval and for service-related needs.
- Case 2: Two-month reference period
Situation: An employee works under a flexitime system providing for a two-month reference period (January–February).
Breakdown of hours worked:
January:
Week 1: 42 hours (+2 excess hours)
Week 2: 43 hours (+3 excess hours)
Week 3: 38 hours (-2 deficit hours)
Week 4: 43 hours (+3 excess hours)
Total excess at end of January: 2 + 3 - 2 + 3 = 6 excess hours.
February:
Week 1: 42 hours (+2 excess hours)
Week 2: 38 hours (-2 deficit hours)
Week 3: 42 hours (+2 excess hours)
Week 4: 42 hours (+2 excess hours)
Total excess at end of February: 2 - 2 + 2 + 2 = 4 excess hours.
Total for the reference period: 6 + 4 = 10 excess hours.
Application of the flexitime system:
These 10 excess hours recorded at the end of the reference period shall, in principle, constitute overtime and shall be subject to compensation, provided that they were performed at the employer’s request or with the employer’s prior approval and for service-related needs.
The abovementioned thresholds of 12.5% and 10% shall not apply:
- For companies which opt for a reference period of one month or less or for companies which, as at 1 January 2017, are covered by a collective work agreement, a subordinate agreement or an agreement reflecting interprofessional social dialogue, which do not contain any provision regarding reference periods or merely refer to the general law regarding the organisation of working time, given that the reference period may not exceed one month.
- Where a reference period has been negotiated by a collective agreement or by an agreement reflecting interprofessional social dialogue, given that the social partners are free to set maximum limits for work and the compensation relating thereto.
- Where a reference period is implemented through a flexitime system.