Several international news sources recently reported that French law now prevents employees from answering their mobile phones or professional e-mails after 6.00 pm (see articles in the Guardian and USA Today, among others). The truth is somewhat less sensational but somewhat more administratively burdensome for certain consulting companies.
To clarify, French legislation has not been modified to prevent 30 million French workers from communicating after 6.00 pm. The only change in French law is the modification of a single article (Article 4) of one of the almost 600 sectorial collective bargaining agreements (CBAs) applicable in France. This particular CBA—the SYNTEC CBA—applies to employees working for consulting companies, primarily in the technology sector. Article 4 of the SYNTEC CBA relates to the computation of work hours for a certain category of employees governed by the CBA.
Thus, the new Article 4 applies only to a subset of French employees. It does not even apply to all of the one million employees covered by the SYNTEC CBA, but only to the approximately 250,000 employees who have a flat rate pay agreement under this CBA, known in France as the convention de forfait en jours. However, the new Article 4 of the CBA does not prevent even these employees from answering their mobile phones or professional emails after 6.00 pm.
Background to The New Article 4
Under the flat rate pay agreement, certain categories of employees agree to be paid for a determined annual number of working days, rather than for a number of daily/weekly working hours. This type of agreement is strictly regulated and limited exclusively to employees (usually managers and sales people) who have a high level of autonomy and/or travel intensively.
On 24 April 2013, the French Supreme Court ruled that Article 4 of the SYNTEC CBA did not comply with the European working time regulation as it did not sufficiently protect employees’ health and safety and did not sufficiently ensure a fair balance between professional and personal life. As a consequence of this ruling, all the flat rate pay agreements entered into on the basis of the previous version of Article 4 of the CBA were potentially null and void (see French version of the decision).
Given the legal insecurity triggered by the ruling, the employers’ professional associations and the trade unions negotiated an amendment to Article 4 of the SYNTEC CBA to meet the standard of employee protection required by both the European law and the French Supreme Court’s decision (see amendment to the CBA entered into on April 1st, 2014).
The Truth About Article 4
Among several measures aimed at protecting the health and safety of those employees who work under a flat rate pay agreement (such as the obligation to hold follow-up meetings twice a year), the new Article 4 of the SYNTEC CBA provides that the employer must:
Implement proper monitoring to ensure compliance with the maximum daily and weekly work hours under French law, 11 hours and 35 hours respectively; and
Ensure employees can disconnect their professional mobile devices after maximum work hours are reached.
The new Article 4 of the CBA does not state that employees are no longer allowed to work from their laptop or mobile devices “after 6.00 pm”. There is, in fact, no reference in the new Article 4 to “6.00 pm” or any other time threshold.
The true novelty (overlooked by the press) of the new Article 4 of the SYNTEC CBA is that it creates, for companies covered by SYNTEC CBA, an obligation to actively monitor the actual working time of employees who supposedly work a predefined number of days. This may lead to the necessity of keeping a tally of the number of hours worked each day by each employee.
The result—which for these companies is probably worse than what was reported in the press—is that the new Article 4 strips the flat rate pay agreements under the SYNTEC CBA of any real value. It probably sounds the death knell for agreements initially designed for autonomous employees whose working time is difficult to track and compute, and which must now be monitored, controlled and computed in hours, including hours after 6.00 pm.