Senior Executive: Should he participate in the management of the company?

Your employees must meet a number of overall criteria to benefit from the position of Senior Administrator in the application Labor Code (Art. L. 3111-2):

• Being a manager: This may be the result of what is stated in their employment contract, the classification of your collective agreement, and the command authority they have with employees and / or their technical, administrative, legal training, business or finance;
• There are responsibilities that signify great freedom in arranging their schedule;
• Often arbitrary decision-making power;
• Getting paid at the highest levels of the payroll system implemented in the company or establishment.

When they meet these conditions, your employees will not be subject to the rules regarding working hours, rest periods and public holidays. So you have no obligation to calculate their working hours. Those who work more than 35 hours a week should not be paid extra.

In the event of lawsuits, judges will review the actions they actually take to assess whether your employees fall under the rank of senior executive. If this is not the case then maybe your account expose you to overtime (see our article “Executive Manager: If the Employee Does Not Really Come to This Position You Will Pay Overtime”).

If you would like to know more about the position of Senior Administrator, we recommend our documentation ” Tissot Community Enterprise ACTIV You can also download our CDI template to hire employees as senior executives.

But what exactly does the power of the employee to make often autonomous decisions really mean? Do you need this criterion to define the strategy of the company and to involve your employees in its management systems? So do you want to participate in the management of the company? The Court of Cassation has again ruled on this question.

In the case filed in the Cassation Court, an employee was hired as the operational manager of the hotel restaurant and restaurant manager. He earned an average monthly salary of 39 hours per week. As well as an annual bonus of 5% of total operating income for the previous year.

This employee is involved in a routine breach with his employer. He then seized the industrial tribunal for paying various sums to execute his employment contract.

The Court of Appeal ordered the company to pay various sums to the employee. Overtime, damages due to non-compliance with related pay leave and compulsory retirement compensation. Total about 115,000 euros

Questioned? Exclusion of the position of the employee as a senior executive in relation to his activities actually performed. The Court of Appeals noted that the employee must notify the CEO of the company. The latter confirmed the management and definition of the company’s policy. It is therefore not established that the employee participated in the definition of the company’s strategy and its management systems.

The company challenged this decision. It considers that the status of an employee as a senior executive cannot be excluded for these reasons. This, according to him, met the criteria imposed by the Labor Code.

The Court of Cassation agreed with the Court of Appeal, relying on the definition of senior executive established by the Labor Code. The employee benefited from the highest salary in the company and had a certain freedom in the organization of his schedule. However, it is not clear from the prepared documents that he had any decision-making power or the autonomy of a senior executive.

Court of Cassation, Social Chamber, April 13, 2022, no. 20-13.817 (Mostly autonomous decision making power should be vested in the senior executive. Company strategy and its management bodies)