Raising an executive to the status of senior manager is a celebration that recent case law could spoil. Henceforth, a rider must be signed, excluding any reference to working hours and working time. Moreover, the legal battle must be waged to amend this position of the Supreme Court.
Some managers do count their working hours, others their days. Executives are counting on ... the errors in the case law to get rich.
You are not born an executive
But the Court of Cassation(1) has flipped the table, and the wording analysis with it. For it, it is no longer the combination of the three criteria (duties, salary, strategy) that creates a senior executive. It is the fact of no longer being subject (by contract) to the rules of working hours that allows one to be considered a senior executive. However, provided that the three conditions mentioned above are also met.
The financial stakes are tremendous and apply to all of you, employers reading this column. The trap has closed on you. Because the Court of Cassation has not planned to delay the effect of its new case law. So if five years ago you promoted an employee (who was working 35 hours at the time) to the status of manager without a written amendment, you will be in trouble. He has not in fact acquired the status of manager. He can therefore ask you to pay him for the hours he worked in excess of 35 hours. He will also ask you to pay him the extra pay, the related holiday pay, the compensatory rest and the compensation for concealed work.
In the event of a dispute, the amount of the salary arrears will soar. There are two reasons for this: 1/ on the one hand, the "ex" executive benefits from one of the highest salaries. With executive status, which has been deemed unenforceable, his total annual salary will be related to 1,607 annual hours. This will make his hourly wage price explode. 2/ On the other hand, an executive works much more than 35 hours per week. The combination of the two points will give an eye-watering figure.
Panic on board, an immediate reaction is required! Firstly, you need to organise your executive contracts. Secondly, you need to counter this senseless case law.
Taking care in the face of the storm
Employers of senior executives must be cautious. A careful study of your contracts - and amendments - is a must! The slightest reference to a timetable or control of working hours should make you leap. You must sign an amendment with the executives concerned. Its content must be clear and precise.
Stopping the burning.
Offering a rider will arouse curiosity. With a few clicks, they will find a (our?) legal article on the subject. So be prepared for a flurry of questions. As a reminder, this jurisprudential perspective is a reversal. Before 2017, the Court of Cassation judged in concreto whether the status of executive was proven. This is logical, as it was the very wording of Article L3111-1 of the Labour Code. Some employees "are considered as senior managers". Then a first published but unnoticed ruling reversed the analysis(2). It endorsed the absence (or deletion) of reference to working time as an absolute condition of status. And the last judgment of 2022 sets the scene.
This reversal is not absolute. The Court of Cassation may reconsider it.
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