Where an employee has been applied an illicit global remuneration clause (“convention de forfait”), he/she is entitled to request some compensation and in particular:
- a back pay for all extra hours he/she has done (i.e. the hours worked beyond 35 hours per week) if he/she can prove them;
- damages for loss of entitled compensatory rest;
- damages for failure to inform on the right to compensatory rest;
- compensation for concealed work provided by Articles L.8223-1 and L.8221-5 of the French Labour Code.
The Supreme Court (Cass. Soc., June 16, 2015, No. 14-16953) recently confirmed that the application of an illicit global remuneration clause (“convention de forfait”) does not allow the employee to automatically request a compensation for concealed work.
Indeed, the Supreme Court considered that the employer’s intention cannot be inferred only from the implementation of an illicit “convention de forfait”.
It is now clear that in order to claim compensation for concealed work, the employee must prove that the employer intentionally sought to conceal the hours actually worked.