A recent ruling by the Court of Cassation introduces considerable uncertainty for companies employing itinerant workers (maintenance or salesmen) who travel a lot for work… It could give rise to overtime payments.
This change in law could upset the situation for many employees. A sentence of the Court of Cassation of 23 November the latter is interested in the travel time between the home of an itinerant worker (technicians, representatives, etc.) and the customer’s headquarters in order to know whether or not this journey constitutes effective working hours, likely to generate payment of overtime.
As Marion Kahn-Guerra, a lawyer specializing in employment law at the Desfilis law firm explains, “the Court of Cassation indicates that it is now up to the judge to verify whether, in the travel time between his home and his first or last client, whether the employee is free or not to carry out his personal activity or if he must comply with the directives of his employer Depending on the answer given to this question, this travel time will or will not be considered as effective work and therefore remunerated as such”.
Alignment with the Court of Justice of the EU
It should be recalled that up until this decision, the Court of Cassation has always held, pursuant to article L.3121-4 of the Labor Code, that the travel time between the worker’s home and his first client, or, conversely, , the evening between his last client and his return home, did not constitute actual working hours.
“On the other hand, this travel time should give rise to compensation which may be financial or in time of rest, if the travel time exceeds the usual travel time between your home and your usual place of work. Motivation n. “It is not the same if the employee passes through the company premises before going to his first customer. The travel time to go from the company to the customer will be considered as effective working time” specifies the expert.
In reality, the Court of Cassation ended up aligning itself with the position of the CJEU (Court of Justice of the European Union) which believes that the travel time of an itinerant worker between his home and the offices of the first and last customer can , under certain conditions, be recognized as effective working time.
Litigation risk
And to continue: “in the case examined by the Court of Cassation, the worker, who did not have his usual place of work, carried out interventions with customers as part of a cycle of visits scheduled by his employer and during his time off movement between his home and the client, he had to be at the disposal of his employer without being able to freely carry on his personal affairs”.
The employer’s conviction to pay the arrears for overtime is therefore confirmed.
While this decision does not lead to a single rule, it “introduces a dose of uncertainty. It implies that companies employing traveling workers carry out an audit of the working conditions of these employees in order to determine whether these travel times could qualify as effective working hours”. of work, and if necessary modify them, to avoid finding ourselves, at least for the future, with requests for payment of overtime that could prove to be substantial” warns Marion Kahn who anticipates “a new dispute in perspective “.
