Legal news 29 July 2019
Employers should give careful consideration to the right to logout during vacation periods.
As the French Labor Code does not provide for any provision on this right, the employer defines the provisions in this regard.
FROM A RIGHT TO LOGOUT FOR EMPLOYEES WORKING A FIXED NUMBER OF DAYS PER YEAR TO A GENERAL RIGHT TO LOGOUT FOR ALL EMPLOYEES
The right to logout, established by the El KHOMRI law dated August 20, 2016, was initially envisaged for employees working a fixed number of days per year.
Such a clause must define the terms of this right, if they are not already provided by a collective agreement setting the fixed number of days.
Since January 1, 2017, this right to logout has become a general obligation for companies, in particular those employing more than 50 employees, which are obliged to discuss this logout issue during the annual negotiation on professional gender equality and the quality of working life. According to Article L. 2242-17 of the French Labor Code, this negotiation must result in a collective agreement. Failing that, the employer must setup a charter on this theme after having consulted the company’s labor committee.
The right to logout has a two-fold objective and offers employee protection:
- to ensure the respect of rest periods and paid leave;
- to strike a balance between the employees’ private and family life and professional activity.
The application of this right in practice may nonetheless be difficult to conciliate with the company’s requirements and modus operandi, and often depends on managerial practice and the employees’ individual reactions.
THE INTEREST OF THE RIGHT TO LOGOUT: MINIMIZE THE RISK OF LITIGATION BEFORE THE EMPLOYMENT TRIBUNAL
Whilst the French Labor Code does not provide for sanctions or control on the implementation of this logout right, employment tribunal litigation constitutes one of the employer’s major risks, whether it is based on an employee’s claim for back pay for overtime or based on an employee’s claim relating to a breach of a safety performance obligation.
As an example, the employees frequently produce emails before the employment tribunal in support of their back pay claims for overtime in order to prove that they work early in the morning, late in the evening, during their weekends or paid leave periods.
The labor division of the French Supreme Court has accepted a detailed breakdown of the hours mentioned on the employee’s emails as sufficient proof of the number of working hours (French Civil Supreme Court, labor division, March 12, 2014, no. 12-29.141).
If the employer organizes a right to logout it will avoid such litigation and shall enable it to prove that it has met its safety performance obligation with regard to its employees who may not assert an excessive workload as a cause for their ill-health.
IDENTIFY THE COMPANY’S NEEDS TO SETUP A COLLECTIVE AGREEMENT OR A CHARTER ON THE RIGHT TO LOGOUT
To setup the collective agreement or the charter on the right to logout, it may be opportune to adopt a methodological approach.
In order to specifically identify the functioning and management of the work organization, it is first recommended to establish a preliminary diagnosis for the adoption of the appropriate measures for the implementation of this right to logout.
In this regard, it is relevant to involve a minima the information systems’ department in order to identify the volume of the emails exchanged during rest and paid leave periods, per department and per team.
The employer has many options at his disposal to ensure the application of this right to logout.
In order for the employees to become familiar with this right, the employer should nonetheless provide for awareness and preventive actions for the employees such as:
- information for employees via the company’s communication tools: intranet, postings, welcome booklet;
- the organization of training sessions;
- an inclusion of the issue of the use of digital tools during vacation periods during the annual appraisal meeting;
- the insertion of a specific mention under the electronic signature.
The employer may also use technology to encourage its employees to logout as follows:
- by setting up an automatic alert on the server in the event of the non-respect of daily rest periods or logout outside of the working schedule;
- by setting up alert pop-up windows: when an email is sent outside of the working schedule, it may be opportune to provide for an alert pop-up window encouraging the respect of logout periods. The procedure may be further enhanced by proposing to the sender to resend his email after the logout period.
Finally, the employer may provide for login periods. For example, these periods may correspond to the employees’ working hours, if they are subject to fixed working hours. The employees working under a fixed number of days per year organize their own working schedule, and, accordingly, their logout periods could be constituted by the daily and weekly rest periods.
This control of login periods does not exclude providing for certain urgent or exceptional situations as an exemption to the right to logout.
