OD FLASH | Threshold for triggering overtime pay: accounting for paid leaves

Court of Cassation, Social Chamber, September 10, 2025, No. 23-14.455

On September 10, 2025, the Social Chamber of the Court of Cassation handed down a decision concerning the threshold for triggering overtime.

In this case, three employees subject to a fixed 38.5-hour working week, limited to 219 working days per year (Syntec condition no. 2), brought a case before the labor court to:

• Challenge the working time regime, as the conditions of the collective agreement were not met, in order to have their working time calculated on a weekly basis; and, as a result,
• Receive overtime pay corresponding to the difference between the suppletive, legal 35-hour threshold and the 38.5 hours provided for in their work. schedule

The Court of Appeal upheld the employees’ claims for back pay, but, in accordance with the historical position of the Court of Cassation, only compared the actual working time to the 35-hour threshold, and therefore deducted from the actual working time considered the days of paid leave and RTT (reduced working time) taken, which had the effect of limiting the number of hours actually worked in certain weeks.

The employees have lodged an appeal with the Court of Cassation, arguing that paid leave days should be considered as actual work for the purposes of triggering overtime.

The question put to the Court of Cassation was therefore whether paid leave days should be taken into account in calculating the threshold for triggering weekly overtime worked by an employee.

The French Court of Cassation answered in the affirmative. In a reversal of its established case law, it based its decision on the Charter of Fundamental Rights of the European Union, which states that the right to paid annual leave is an essential principle of EU social law.

However, the Court of Justice of the European Union (CJEU) concluded that any practice or omission by an employer that has a potentially dissuasive effect on a worker’s taking of annual leave is also incompatible with the purpose of the right to paid annual leave and that an employee cannot suffer a financial disadvantage as a result of taking paid leave – such as, for example, an employee not receiving commissions during a period of leave (CJEU, May 22, 2014, Lock, C-539/12).

The Court of Cassation, extrapolating from the decision of May 22, 2014, that an employee would be “discouraged” from taking paid leave if this prevented them from benefiting from overtime, due to the 35-hour threshold for triggering overtime.

The Court of Cassation, interpreting the legislation in such a way as to ensure its compliance with Community law, concludes that the overtime threshold should be lowered when an employee takes paid leave for a week.

However, the Court of Cassation does not indicate that the same reasoning applies to other days off, meaning that the deduction of hours not worked due to an employee taking RTT leave could still be accepted by the courts. Furthermore, the Court of Cassation does not expressly state that its reasoning would apply to the five weeks of paid leave provided for by the French Labor Code, so that it could be envisaged that the reasoning derived from Union law European would be limited solely to paid leave relating to the first four weeks of leave.