The legal definition of senior executive is 25 years old. It was the Aubry II Law No. 2000-37 of January 19, 2000 (Article 11) that incorporated the term senior executive into the Labor Code by incorporating Article L. 212-15-1, which later became Article L. 3111-2. This Aubry II Law of January 19, 2000, established the legal working week at 35 hours.
It also provides for a number of exemptions to the 35-hour week: for executives on fixed-day work, but also for senior executives.
The classification of senior executive allows employees who benefit from it to be exempt from the application of working time regulations. Conversely, if the courts exclude the classification of senior executive, the employee will be entitled to request payment for overtime worked beyond the legal working hours. The Court of Cassation has clarified the scope of this status, the conditions of which are set out in Article L. 3111-2 of the French Labor Code. The conditions for applying the status of senior executive are strictly assessed by the Court of Cassation in order to limit abuse.
1) Preeminence of legal criteria in determining the application of the status of senior executive.
Article L. 3111-2 of the French Labor Code provides three criteria for granting senior executive status to an employee, namely:
Significant independence in organizing their work schedule,
The ability to make decisions independently,
Compensation at the highest levels of the compensation systems practiced in the company or establishment. The Court of Cassation clarified that only those executives who participate in the management of the company fall within the category of senior executives within the meaning of this text.
However, it has repeatedly reaffirmed that this is not a fourth, independent or separate condition, but rather a condition resulting from the accumulation of the three conditions of the text [1].
These conditions are, in any event, strictly assessed in order to restrict the number of senior executives falling within this category.
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Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
CHHUM AVOCATS (Paris, Nantes, Lille)
e-mail: chhum@chhum-avocats.com
https://www.instagram.com/fredericchhum/?hl=fr
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