The claim for invalidity of an agreement whereby working time is calculated in days over the year (“convention individuelle de forfait jours”) remains admissible as long as the request for a back payment for overtime is not time-barred

FSC, 27-3-2019 n° 17-23.314 FS-PB, M. c/ Sté Boucheron

An employee who had signed in 2006 an individual agreement providing that his working time would be calculated in days over the year considered it to be null and void since it did not guarantee compliance with the maximum working time nor with the daily (11 hours) and weekly (35 hours) minimum rest periods.

In 2014, he claimed for back payment for hours worked in excess of the legal working time duration i.e. 35 hours per week.

The employer argued that the employee’s claim was inadmissible since the statute of limitation started running when the employment contract was concluded (e.g. 8 years earlier).

The French Supreme Court did not agree. For the first time it held in a recent decision of 27 March 2019, that the employee may claim the invalidity of his agreement whereby his working time is calculated in days as long as the related claim for overtime is not time-barred (regardless of the grounds for challenging the validity of such agreement).

As the statute of limitation for overtime is 3 years, any employee who has worked more than 35 hours in the last 3 years will be admissible to challenge the validity of the agreement regarding his/her working time calculated in days.