1) Telework (Télétravail) and work overload (surcharge de travail).

As the culture of presenteeism is particularly anchored in the French working world (and particularly in Paris and Ile de France), teleworking is not always well experienced by either the employer or the employee and can prove to be a source of difficulties. , especially in terms of workload.

Not only does telework make it more difficult to assess the workload of the employee, but it often also generates a very special situation in which the employer has the impression that his employee is not working sufficiently while the employee, moved by a sort of feeling of guilt, tries to do more and more to compensate for his "absence".

Thus, a DARES study of November 7, 2019 conducted among executives in the private sector revealed that with equivalent responsibilities, the weekly working time was increased among teleworkers [2].

We thus see that the working hours of executives in teleworking are on average 43 hours per week against 42.4 hours for those who do not telework and that the former declare twice as often to work weeks of more than 50 hours.

However, telework does not relieve the employer of his obligations in terms of workload and hours of work.

The national interprofessional agreement on telework of July 19, 2005 expressly specifies, in its article 9, that the employer remains held, with regard to teleworkers, of the respect of the legislation relating to the hours of work and especially the duration maximum work and rest times [3].

This same article recalls that the workload, the production standards and the performance criteria required of the teleworker must be equivalent to those of employees in a comparable situation working on the premises of the company.

The workload may also have to be adapted to take into account the particularities of teleworking imposed to combat the spread of Covid-19.

Indeed, very often, the employee does not have the conditions required to perform his work at home (isolated room, computer equipment etc.).

What is more, since the schools have also been closed, it must be taken into account that employees who are parents must also take care of their children at home (and even sometimes provide schooling at home), which can s '' prove difficult to combine with a full-time working day.

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Notes :

[1] Les Echos COVID 19 - Les Grands Oubliés du Télétravail.

[2] Etude de la DARES « Le télétravail permet-il d’améliorer les conditions de travail des cadres ? », 7 novembre 2019.

[3] Article 9 de l’accord national interprofessionnel du 19 juillet 2005 relatif au télétravail.

[4] Article L. 2242-17 du Code du travail.

[5] Article 1152-1 du code du travail.

[6Cass. crim. 19 février 2019, n°18-83268.

Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)

CHHUM AVOCATS (Paris, Nantes, Lille)

e-mail: chhum@chhum-avocats.com



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