During certain periods of the year, in case of extra work or on special occasions such as a company transfer: employees are required to work overtime.
When this overtime is accumulated and exceeds certain legal thresholds set by the Labor Law, it is considered as supplementary work and no longer as overtime. These thresholds depend on the position held by the employee.
In principle, the employee is obliged to work overtime when it is necessary to preserve the interests of the company. For supplementary work, the conditions are stricter. The employer must prove an urgent and exceptional need in order to require the employee to do supplementary work.
There are specific situations where the employer cannot require the employee to perform supplementary work. These are situations where the performance of supplementary work is likely to be detrimental to the employee's health. Pregnant or breastfeeding women, apprentices, young workers, employees in continuing education, who work at night or who have family responsibilities are in special situations.
In addition, the number of hours of supplementary work that the employer may request from the employee is limited on a daily basis. The employer may also not ask an employee to perform supplementary work during the night or on Sundays.
In order to allow employees to attend religious holidays outside of public holidays, the Labor Act provides that they may request time off from their employer. The employer may require the employee to compensate for the day off, if necessary by performing supplementary work. However, there are daily limits on compensation.
Remuneration or compensation
Supplementary work must in principle be paid at a rate of 125%. Under certain conditions, the employer may compensate supplementary work at a rate of 100%. To do so, an agreement between the employer and the employee will be necessary.
Beyond a certain threshold, payment for supplementary work without a premium will no longer be possible. Supplementary work pay at 125% will be mandatory for specific categories of employees.
The parties may, under certain conditions, decide to compensate overtime work by taking time off. The latter must be taken within a reasonable period of time, as determined by the Labor Act. Does this leave have to be extended by 25%?
Outside of office hours
Thanks to new technologies, it is possible for the employee to work from anywhere and especially at any time. The boundaries between private and professional life are becoming blurred and extra work can take unexpected forms. When the employee checks his/her e-mails in the evening, prepares a file for the next day during the night or is called by his/her employer at all hours, this can be considered as supplementary work.
In terms of supplementary work, each employer keeps a record for his/her own company. However, care must be taken if the employee works several jobs at the same time. Indeed, the maximum weekly working time can quickly be exceeded when the employee works for several different companies. There is a risk that the employee may end up doing extra work without the employer noticing.
Managers and senior management positions
have a privileged position in the company. They are expected to provide a higher quality and quantity of work than their subordinates. This commitment is compensated in principle by a higher number of holiday weeks or a higher salary.
Under certain conditions, executives and employees in senior management positions will not be entitled to overtime pay. With respect to supplementary work, executives and senior managers are not subject to the same regime. How do you differentiate between an employee in a senior management position and an ordinary manager?
Registration of working hours
In order to enable the authorities to verify compliance with the legal provisions on working hours and rest periods, employers are required to register the working hours of their employees. What about supplementary work and the hours during which it is compensated?