Designed in 1936 for the metallurgical factory or the department store with their time clocks and foremen, can our control of working hours apply to an employee who regularly works at home? “The working time is the time during which the employee is at the employer’s disposal, without being able to freely go about personal occupations” (L.3121-1 of the Labor Code).
During the contractually scheduled hours, the teleworker could not therefore “go about freely” … At his home? Where neither the employer nor the labor inspector can enter without his express consent? But where the temptations (TV), and sometimes the obligations (baby) are more important than in the office?
A job never really finished
But working at home also encourages overconnection to compensate for the lack of contacts in the company, and many employees now have a dedicated place there. However, unlike manual labor, which is difficult to export (taking a car door at 6:00 p.m. to finish it …) and which has an end (the “nickel chrome” piece), intellectual work is never really finished, because always improvable.
Then ? No difference for the control, answer in chorus the Labor Code and the National Interprofessional Agreement on telework of November 26, 2020. Is this really reasonable? Because on the business side, the litigation risks are considerable: overtime or night time overtaking over the last three years (tens of thousands of euros). But also criminal: fines for exceeding the maximum periods, or even a criminal offense for concealed work.
Virtual badge
However, teleworking can only develop if the threat of such litigation does not hover, including for executives on fixed-price days. If the employer no longer has to deduct their working time, they must benefit from the 11 minimum hours of rest under Community law: it is up to companies to prove that they have not exceeded the maximum amplitude of the 13 daily hours.
Some have planned a virtual badge: great confidence, the basis of teleworking with the obligation of result, but sometimes optimistic. Others, to cover themselves, the automatic cut-off of access to servers beyond thirteen hours of connection: impossible to work offline? As for remote visual monitoring (eg open camera) of the employee in this temple of the intimacy of his private and family life, we forget.
Then ? Summaries of the employee on his working time, and break? Here again, trust, but not excluding serious surprises in litigation: because if they are very creative, probationary law then puts the company in difficulty. What about, for example, annual tables drawn up by the employee providing neither a day by day statement, nor precise dates and times (Cass., Soc., June 2, 2021)?
Risk of uberization
Response of the judges: application of L. 3171-4: “In the event of a dispute relating to the number of working hours, the employer provides the judge with the elements likely to justify the hours actually worked”. In short, if he cannot demonstrate the inaccuracy of the schedules declared by the teleworker, he loses every time.
What to do ? It is here the Community directive of 2003, well before the iPhone and 4G, which sets the tone: its revision is necessary so as not to enter the future backwards. But also to avoid uberisation: when an employer in good faith comes up against impracticable legal obligations, he is tempted to get around the obstacle by becoming the principal.
Jean-Emmanuel Ray is professor of labor law at Paris I-Sorbonne.
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