Thirty-five hours, and three ceilings

IndustrieModerne runs its workshop 46 hours in some busy weeks, on a payroll of 2 400 000 €. The director believes he is breaking a legal limit from the thirty-sixth hour onwards. He is conflating two things the labour code keeps firmly apart. Before you read: what exactly does the thirty-five-hour figure set, and where are the real ceilings?

A threshold, not a ceiling

Article L3121-27 of the labour code runs to one sentence: the statutory duration of actual working time for full-time employees is set at thirty-five hours per week. The text says set; nowhere does it say capped.

The distinction governs everything that follows. Thirty-five hours is the threshold from which hours become overtime, with the consequences the next module sets out. It is not the boundary beyond which work becomes unlawful.

A director who thinks he is at fault from the thirty-sixth hour is therefore looking at the wrong rule, and that error hides a costlier one: while watching the wrong threshold, he is not watching the ceilings that genuinely cannot be crossed.

Ten hours a day

The first ceiling is daily. Article L3121-18 provides that the daily duration of actual working time per employee may not exceed ten hours. This time the verb is negative: it really is a limit.

The text reserves three ways out, and names them: a derogation granted by the labour inspector on terms set by decree, a case of urgency on terms set by decree, and the cases provided for in article L3121-19.

These three share one feature: none of them is triggered by the employer's will alone. Two run through a regulation, the third through a separate article. A derogation is applied for or justified; it is not decided unilaterally.

This is the point a stretched operation crosses without noticing. A ten-and-a-half-hour day decided on a busy morning falls into none of the three named ways out: the urgency the text means is the one a decree defines, not the one the order book makes you feel.

Two weekly ceilings, two clocks

The second ceiling is read within any one week: article L3121-20 sets the maximum weekly working duration at forty-eight hours. It is checked week by week, with no offsetting against neighbouring weeks.

The third changes clock. Under article L3121-22, the weekly working duration calculated over any period of twelve consecutive weeks may not exceed forty-four hours, save in the cases provided for in articles L3121-23 to L3121-25.

The word any is the one people miss. The twelve-week period does not start on 1 January nor at the beginning of a quarter: any rolling window of twelve consecutive weeks has to hold the forty-four-hour average.

A business that is compliant week by week may therefore be over the limit across twelve weeks, and the reverse holds as well. The two ceilings are not checked with the same instrument, and checking one never excuses skipping the other.

In practice this means keeping two records rather than one. A weekly total answers the first ceiling; only a rolling twelve-week average answers the second, and it has to be recomputed as each new week closes rather than once a quarter.