Under French law, an employee who works under a part-time employment agreement may work overtime hours within a dual cap:
- The number of overtime hours should not exceed 10% of the weekly or monthly working time provided in the employment agreement (article L.3123-28 Labour Code). This 10% cap may be overridden by a collective agreement providing for a higher cap, up to an absolute maximum of 1/3 of the contractual working time (article L.3123-20 Labour Code);
- The number of overtime hours actually worked should not make the employee work as much as the statutory working time, i.e. 35 hours per week (article L.3123-9 Labour Code).
If an employee does work 35 hours or beyond, case law considers that the employee is entitled to file a claim to characterize a full-time employment contractand claim a back payment of salary corresponding to a full time contract.
In a recent case dated 15 September 2021 (n°19-19563), the French Supreme Court clarified its position on this topic.
In this case, an employee worked under a part-time employment contract providing for a working time of 50 hours per month.
The employee claimed the characterization of a full time employment contract as he worked, during one week, 36.75 hours.
The Court of Appeal dismissed the claim on the basis that, as the working time was expressed on a monthly basis, the fact that the employee worked over 35 hours during only one week, when the monthly working time remained the same, was not sufficient to characterize a full time employment contract.
The French Supreme Court overruled the Court of Appeal.
According to the Court, the fact that the employee worked over the statutory working time of 35 hours, be it only for one week, was sufficient to characterize a full time employment contract and uphold the employee’s claim.
In light of this decision, it remains important to closely monitor employees’ working time, in particular those working part time, to avoid any claim related to the characterization of a full time contract.