Employees regularly seek payment for allegedly worked overtime before labor courts.
These actions raise two major questions: the proof of hours worked and the quantification of the volume of hours worked.
However, by a decision of March 18, 2020 (18-10.919), the Court of Cassation has signaled its willingness to accentuate the evidentiary imbalance between employers and employees with respect to the counting of overtime hours.
Previously, the High Court had already renounced to exercise a real control over the counting of overtime hours claimed by employees (Cass. soc., December 4, 2013, 11-28.314).
1/ Increased imbalance in the burden of proof
On overtime, the Labor Code already institutes, in our opinion, an evidentiary imbalance unfavorable to employers.
Article L. 3171-4 of the French Labor Code (formerly art. L.121-1-1) provides that : “In the event of a dispute concerning the existence or the number of hours worked, the employer shall provide the judge with the elements likely to justify the hours actually worked by the employee. In view of these elements and those provided by the employee in support of his claim, the judge shall form his opinion (…)”
Prior to March 18, 2020, the Court of Cassation considered that “it was up to the employee to support his claim by producing sufficiently precise elements as to the hours actually worked to allow the employer to respond by providing its own elements” (Cass. soc., July 3. 2013, 12-17594).
In its decision of March 18, 2020, the High Court modified the wording of its principled opinion: the obligation of employees “to support” their claim with sufficiently precise elements is now replaced by the obligation of “present sufficiently precise elements”.
The High Court of Justice affirms its desire to avoid an overly demanding control by the judges of the elements provided by the employees concerning overtime
In other words, it is only up to the employees to submit elements that are “somewhat detailed”. Thus, it has been held that a weekly breakdown of the number of hours of overtime worked is sufficient to oblige employers to provide information (Cass. soc., November 12, 2020, 19-11.317).
Similarly, the Court of Cassation considers that a daily statement indicating the starting and ending times of the service but not specifying the taking of the lunch break is sufficiently precise (Cass. soc., January 27, 2021, 17-31.046).
However, the requirement of a minimum precision of the elements provided by the employees remains. Before the courts, it should be remembered that the need for “sufficient precision” of the employees’ documents is essential to respect the adversarial principle. Without sufficient precision, employers would be deprived of the possibility of responding effectively.
2/ A lump-sum calculation of overtime
What is regrettable is that judges are exempt from the effort of calculation and precision.
Indeed , in its December 4, 2013 ruling, The Court of Cassation has indicated its tolerance for a lump-sum, or rather, a rough estimate of the number of overtime hours worked by employees :
But whereas, after having taken into consideration the elements provided by the employee which it analyzed, the Court of Appeal, without being required to specify the details of the calculation applied, sovereignly assessed the amount of overtime and consequently fixed the wage claims relating there to; that the pleas are not founded.
In other words, judges are now exempt from having to justify the calculation used to order the employer to pay back wages.
They can simply deduct a certain amount of overtime “arbitrarily”. They are not required to provide any explanation of how they were calculated. This solution was confirmed by the decision of March 18, 2020.
As a result, employers who have made a genuine effort to prove working hours will not be able to assess the quality of the analysis that led the judges to condemn them, since the calculation used will not have to be detailed.
As a result, the evidentiary imbalance and the lump-sum calculation of overtime will be accentuated, and the vagueness will benefit the employees !
In conclusion, these decisions have at least the advantage of reminding employers of the virtues of setting up, before any litigation, a precise and reliable system for counting employees’ working hours. Similarly, employers must be particularly vigilant when setting up a fixed-term workweek to avoid being ordered to pay significant amounts of overtime (cf : Executives on fixed-term workweeks, beware of workload monitoring; Cancellation of fixed-term workweeks: who’s next? )
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