Actance Tribune
What's NEW under French Employment Law?
N° 12 – January 10, 2023
Preparation for power cuts in the context of the war in Ukraine
During the winter, Réseau de transport d’électricité (RTE), the electricity transmission network operator, announced that the context created by the war in Ukraine, was causing supply difficulties for the electricity network, load shedding could occur, causing occasional power cuts for at most 2 hours at a time. These power cuts will affect individuals and professionals alike.
Under these conditions, and in order to alleviate the difficulties that companies may experience in their operation and to their employees’ work, the French government has announced measures allowing companies to possibly implement the part-time work scheme in case of load shedding. The use of the partial operation scheme should be the last resort, and companies must demonstrate to the administrative body that all measures (specifically the adjustment of work times) have been considered beforehand to avoid partial operation.
Should the company have no other alternative than partial operation, and subject to the acceptance of the administration, companies will pay the employees concerned compensation at the common law rate of 60 % of their gross salary and will be then compensated by the State up to a limit of 36% of the employee’s gross salary.
Recommendations
We advise our clients to prepare for these difficulties and to assess the impact of such power cuts on the organisation of work and employees, for each work unit.
The business continuity plan thus defined aims to identify:
- Employees who can telework;
- Employees who cannot telework: in this case, it is necessary to identify among the latter, those who will be assigned to new missions and those who cannot be reassigned and will thus remain inactive. In the latter case, the government invites companies to search for any valid alternative solution to partial activity, which could be, if necessary, should there be an agreement reached with the representative trade unions, the taking of paid leave, rest days or the use of modulation.
This consideration can also be carried out as part of an energy saving plan (reduction of interior lighting in buildings, heating), as recommended by the government.
Focus on the employee loyalty obligation
The employee is subject to a general loyalty obligation during the performance of their employment contract, prohibiting them from engaging in any activity competing with that of their employer.
This loyalty obligation differs from the non-competition clause generally included in the employee’s employment contract, which aims to prohibit them from carrying out an activity competing with that of their employer after the termination of the employment contract. To be valid, it must fulfil the following cumulative conditions:
- It must be limited in time and space;
- It must be limited to a specific activity;
- It must be essential to the protection of the legitimate interests of the company;
- It must provide for financial compensation.
For more information on the non-competition clause, please consult our actance-tribune n° 7.
If there is no non-competition clause in an employment contract, this does not exempt the employee from respecting their loyalty obligation (Court of Cassation – Commercial Chamber, December 7, 2022, number 21-19.860).
In a decision of December 14, 2022, the Court of Cassation recalled the importance of the employee loyalty obligation to their employer. Even if there is no non-competition clause, an employee can be convicted for having committed acts of unfair competition against their former employer. Following the termination of their employment contract, an employee cannot retain or use confidential information or documents belonging to their former employer in their new activity. This was the situation in a case handled by the Court of Cassation on December 7, 2022.
In this case, an employee whose employment contract did not include a non-competition clause left their employer to participate in the creation of a company. When they left, they took a client file belonging to their employer. Before leaving the company, the employee had made a contract proposal to their employer’s clients via the new company created, of which they were not yet the director.
The former employer sued the new company for unfair competition. The employer accused the new company firstly, of having misappropriated their client file and secondly, of having canvassed their clientele before the end of their employment contract with one of the former founding employees of the above-mentioned competing company.
The judges agreed with the employer. They consider the mere fact that should a former employee of a competitor participate in the creation of a company, and should this employee possess confidential information on the activity of the competitor obtained during the their employment contract, this constitutes an act of unfair competition.
Proof of compliance with maximum working hours
In France, when all the employees do not work according to the same common schedule, the employer must prepare the documents necessary for the calculation of the working time, as well as the compensatory rest periods acquired including their effective use, for each of the employees concerned.
The employer has an obligation to ensure the documents accounting for the working time of each employee are kept at the disposal of the labour inspection agents.
The Court of Cassation recalled in a judgment of December 14, 2022 that when a dispute relating to hours worked or their number, in support of their case certainly an employee must present elements sufficiently specific concerning the unpaid hours they claim to have worked however, the employer must also provide a useful response by providing their own evidence. This rule applies specifically when the employee is in a telework context (Court of Cassation – social division, December 14, 2022, number 21-18.139).
It follows from this judgment that the employer is not exempt from their obligation to prove they respect the maximum working hours and the right to rest, including in a teleworking situation.
This is a reminder that companies must be vigilant about monitoring working time, especially when employees are teleworking. Note here that proof by the employer of compliance with the maximum working hours is particularly difficult to produce when the employee works remotely in whole or in part.
Companies are therefore advised to set up systems to monitor the working time of teleworking employees.
One of the solutions could be to set up an electronic badge system for employees who work outside company premises. This method would allow employees to clock in or out, morning and evening. Employers would thus be able to monitor the working time of their employees and so prove compliance with the maximum working hours in the event of a dispute.
There are other solutions but it is important for companies to consider them because the financial stakes are high. Requests for the payment of overtime are systematic in the event of litigations concerning compliance with maximum working hours.