The French Labour Code contains specific provisions regarding senior executives (“cadres dirigeants”) which are not subject to working time constraints such as a working time ceiling or monitoring of working time (article L.3111-2 of the French Labour Code).
The term ‘senior executive’ is strictly defined by French Law and the French supreme court regularly reminds us of the relevant criteria to qualify as a senior executive.
French law and case law outline the three main criteria which must be met:
- Significant independence in organizing their work schedule. The employee must have substantial autonomy in managing their work hours, meaning they are not subject to strict control of their work hours by the employer.
- Empowered to make decisions autonomously. The employee must have the ability to make important decisions independently for and in the name of the employer company, without requiring prior authorization. In practice, this means that senior executives often benefit from a proxy covering their scope of responsibilities.
- High level of remuneration: The employee must receive compensation that places them at the highest level of the company compared to other employees of the company. In groups, the level of remuneration is assessed among French employees only.
In a recent decision of September 13th, 2023, the French supreme court emphasized that it is not sufficient for these criteria to be mentioned in documents or contracts. It must also be demonstrated that these criteria were effectively met in the performance of the employee’s duties.
No matter the label, employers must be able to demonstrate that the criteria to qualify as a senior executive are met in practice.
Check your practices: wrongly labelling an employee as a senior executive can lead to substantial financial risks for the employer, especially regarding overtime payments.