Part-time: what happens if you exceed the scheduled hours?

Part-time exceeded: what the Court of Cassation says

Recently, the Court of Cassation decided to clarify the legal framework for overtime for part-time contracts. In its judgment of September 15, 2021, it specifies that, whatever the nature of the part-time employment contract (therefore with hours calculated on a monthly or weekly basis), if you work 35 hours or more over a week, your part-time CDI or CDD can be reclassified as full-time. And this, from the first overrun 35 hours per week. This requalification of the employment contract would obviously go hand in hand with a back pay.

This decision concerns all part-time employees, whether they are executives or not. And it is particularly favorable to them.Caroline Hénot, lawyer at Cornet Vincent Ségurel.

Part-time exceeded: a concrete example

Jean, an executive in a transport company, is on a permanent contract 24 hours a week.

The week of June 7, 2021, his employer asked him to work 35 hours instead of the 24 listed in his contract.

Since then, it has resumed its cruising speed at 24 hours a week.

With the new judgment of the Court of Cassation, Jean is entitled to claim the requalification of his part-time employment contract into a full-time contract from June 7, 2021. And this, even if since June 14, he has resumed his part-time working hours and that his part-time work was based on monthly working hours.

Exceeded part-time: in which cases to request requalification?

> Full time possible

“If the employee finds that there is actually enough work in his company to spend it full time, he can absolutely report to the HRD to request this requalification. Needless to mention it at the start of the negotiation, this judgment of the Court of Cassation would serve as an argument in the event that the employer causes him difficulties”, advises our expert.

> Obtain a negotiated departure

If the employer refuses to switch the employee to full-time and continues to impose overtime on him, “the employee can use this stoppage to negotiate a breach of contract and possibly obtain more favorable starting conditions for him”, illustrates Master Caroline Hénot.

If the company is not sufficiently generous, the aggrieved employee will invoke the possibility of seize the prud’hommes in order to enforce this judgment of the Court of Cassation. And get back pay, and severance pay based on those new amounts.

As we can see, the law now authorizes you on paper to request this requalification, but on the ground, you will have to dare to ask. And take the risk of seeing the relationship with your employer deteriorate if he opposes it or accepts a forced march. The price to pay to be in your right.

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