As was perfectly summarized in Le Monde on 22 January 2018: "It is difficult to find the right balance between the flexibility expected by managers/executive employees working a fixed number of days per year and reinforced by the new forms of work (telecommuting, home office, co-working ...) and the potential drifts of excessive hourly workload.
However, an obligation to control the employee's workload weighs on the employer in that he must regularly ensure that the employee's workload is reasonable and allows for a proper distribution of his working schedule (Art. L.3121-60 of the French Labor Code).
Labor Courts ensure that this requirement, which is intended to ensure the health of employees working in days per year ("forfait jours") is respected, particularly in terms of maximum working hours and daily and weekly rest periods (Cass. soc., 29 June 2011, n°09-71107).
To do this, the employer must in particular:
- Set up a declarative statement, on a monthly basis, signed by the supervisor and validated by the human resources department, along with a possibility to warn the hierarchy in the event of difficulty, and of requesting an interview from the human resources department (Cass. soc., 8 September 2016, n°14-26256).
- Run a control of the number of days or half-days worked by the employees working in days per year and raise during the annual interview the questions of organization and workload of the employees as well as the amplitude of their working days (Cass. soc., 23 January 2019, n°17-22148).
- Ensure that the employees working according to a days-per-year scheme comply with the mandatory daily and weekly resting periods and comply with the provisions of the collective bargaining agreement designed to protect the health and safety of employees working in days per year (Cass. soc., 19 December 2018, n°17-18725).
That being said, the case law has recently added that the employer must not control the planning of employees with a working time in days per year (Cass. soc., 27 March 2019, n°17-31715), who must indeed benefit from a sufficient autonomy in scheduling their work.
In the same time, the CJEU...