Overtime: Supplement and Legal Calculation

Introduction: why the calculation of overtime remains a major issue

In France, overtime is one of the most contentious employment law issues for both employers and employees. According to DARES data published in 2025, more than 9 million private sector employees complete hours beyond the legal working duration set at 35 hours per week by Law No. 2000-37 of 19 January 2000. Yet the rules for calculating the supplement, the triggering thresholds and documentary obligations remain poorly understood by many HR teams and legal departments. This article offers you a complete and up-to-date guide for 2026: legal definition, method of calculating the supplement, annual limit, recovery and documentary obligations — incorporating the latest legislative and collective agreement developments.

---

1. Definition and triggering threshold for overtime

1.1 Legal working duration as reference

Overtime includes all hours of effective work performed beyond the legal weekly duration of 35 hours (or the equivalent duration if a work time arrangement scheme is in place). This definition, set out in article L. 3121-28 of the Labour Code, applies to employees subject to hourly arrangements. It excludes by principle managers on a daily forfeit basis, whose regime is governed by specific rules in articles L. 3121-58 et seq.

For a part-time employee, hours worked beyond their contractual duration are classified as supplementary hours (not overtime), with a distinct increase regime.

1.2 Weekly count as the main rule

The count operates week by week, the civil week being understood as Monday 0:00 to Sunday 24:00 (art. L. 3121-29 C. trav.), unless a company agreement provides for a different reference period. In companies that have opted for work time arrangement over a period longer than a week (annualisation), overtime is calculated at the end of the reference period, by subtracting the volume of hours worked from the applicable collective threshold.

---

2. Increase rates: calculating legal and collective supplement

2.1 Legal rates of increase

Article L. 3121-36 of the Labour Code sets the minimum rates for overtime increase:

• 25% for the first 8 overtime hours in the week (hours 36 to 43 inclusive);

• 50% from the 9th overtime hour onwards (from hour 44 onwards).

These rates are legal minimums. A branch agreement, company agreement or establishment agreement may provide for higher rates. However, since the El Khomri law of 8 August 2016, a company agreement may lower the increase rate to a floor of 10%, provided no branch agreement explicitly opposes this.

Concrete calculation example: An employee with a gross hourly rate of €15 works 10 overtime hours in the week.

• The first 8 hours: 8 × €15 × 1.25 = €150

• The next 2 hours: 2 × €15 × 1.50 = €45

• Total supplement: €195 (compared to €150 without increase)

2.2 The question of the reference hourly rate

The reference hourly rate serving as the basis for calculation must include all remuneration elements with the character of salary and paid as direct compensation for work. The Court of Cassation has regularly recalled (notably Cass. soc., 23 November 2022, No. 21-11.776) that bonuses not linked to the quality or quantity of work do not enter into this scope, unlike seniority or performance bonuses.

2.3 Replacement of payment with compensatory rest time

Instead of paid increase, a collective agreement may provide that payment of overtime and its increase is replaced in whole or in part by equivalent compensatory rest (art. L. 3121-33 C. trav.). This rest, called "replacement compensatory rest" (RCR), does not count towards the annual overtime limit.

---

3. Annual overtime limit

3.1 Legal reference volume

In the absence of a collective agreement, the annual overtime limit is set at 220 hours per employee (art. D. 3121-24 C. trav.). This ceiling may be modified — upwards or downwards — by extended branch agreement or company agreement. Certain professional sectors, particularly in construction or catering, have distinct collective contingents, sometimes raised to 360 annual hours.

3.2 Overtime hours beyond the limit

Hours worked beyond the limit are not prohibited, but they are subject to a dual obligation:

• Prior consultation of the social and economic committee (CSE), under article L. 3121-33;

• Mandatory compensatory rest (COR) at 100% of supplementary working time undertaken beyond the limit (art. L. 3121-38), without prejudice to the salary increase.

Non-compliance with these rules exposes the employer to significant risks of employment tribunal disputes and criminal penalties under article R. 3124-2 of the Labour Code (Class 5 fine, up to €1,500 per offence, increased to €3,000 for repeat offences).

3.3 Count and monitoring: the documentary obligation

The employer must implement an objective, reliable and accessible system for recording working time for each employee, in accordance with the case law of the Court of Justice of the European Union (CJEU, 14 May 2019, case C-55/18, CCOO v Deutsche Bank). In France, this obligation has been transposed into inspection practices of the DREETS. The time register or management software must allow for weekly reconstruction of hours worked and identification of overtime performed.

This is precisely where solutions like electronic signatures for HR teams take on their full value: they enable you to formalise and archive amendments to employment contracts, recovery agreements or compensatory rest forms with enhanced probative value.

---

4. Tax and social exemptions: the updated "Tepa" scheme

4.1 Income tax exemption

Since the TEPA law of 21 August 2007, renewed and amended by the law of 16 August 2022, remuneration paid for overtime and supplementary hours is exempt from income tax up to €7,500 per year (ceiling applicable since 1 January 2023, art. 81 quater of the CGI). This exemption applies to private sector employees as well as certain public officials.

4.2 Reduction in employee contributions

At the same time, overtime provides entitlement to a lump-sum reduction in employee contributions set by decree. In 2026, this reduction is 11.31% of gross remuneration for the hours concerned for employees under the general scheme. It applies within the limit of the amount of contributions and legally or conventionally required obligations owed by the employee.

The employer benefits in turn from a lump-sum employer deduction of €0.50 per overtime hour in companies with fewer than 20 employees (art. L. 241-18 of the Social Security Code), a benefit not to be overlooked in calculating the real cost of using overtime.

4.3 Eligibility conditions and pitfalls to avoid

To benefit from these exemptions, hours must be genuinely performed and the increase must be paid in accordance with legal or collective rules. Overtime hours recovered in the form of replacement compensatory rest do not entitle to tax and social exemptions (BOFiP, BOI-RSA-CHAMP-20-50-40, § 210). The distinction between payment and recovery is therefore strategically important for salary optimisation.

---

5. Formalisation and proof: good documentary practices in 2026

5.1 Individual or collective agreement as foundation

To request overtime, the employer has no obligation to obtain the employee's prior agreement for hours within the limit: it is a management power. However, any amendment modifying the contractual working duration or establishing a forfeit must be the subject of a signed written agreement. This is where electronic signature compliant with the eIDAS regulation provides essential legal assurance, particularly for employers managing multiple sites or remote teams.

5.2 The payslip as key document

Overtime must compulsorily appear on the payslip with specific mention of the number of hours performed and the increase rate applied (art. D. 3243-2 C. trav.). In case of URSSAF inspection or employment tribunal dispute, the payslip is the first document examined. Any discrepancy between the time register and the payslip is systematically interpreted in favour of the employee by employment tribunals.

5.3 Dematerialisation and secure archiving

In a context of increasing dematerialisation of HR processes, electronic archiving of documents relating to working time — timesheets, limit notifications, recovery agreements — must comply with the security and integrity standards required by regulation. Using a comprehensive guide to electronic signatures will enable you to structure your documentary compliance approach end-to-end. To estimate the return on investment of such a dematerialisation approach, Certyneo's electronic signature ROI calculator offers personalised projections in just a few minutes.

Finally, it should be noted that documents relating to working duration must be retained for 5 years from their establishment (art. L. 3171-3 C. trav.), a constraint that favours a digitally probant archiving solution rather than paper.

Legal framework applicable to overtime

Founding texts of French employment law

The legal regime of overtime is mainly governed by articles L. 3121-28 to L. 3121-48 and D. 3121-24 of the Labour Code (consolidated version in force on 1 January 2026). These provisions distinguish the common law regime (companies without collective agreement) from the derogatory regime negotiated by branch or company agreement, in accordance with the three-level structure established by the Macron ordinances of 22 September 2017 (Ordinances No. 2017-1385 to 2017-1388).

Article L. 3121-36 sets the legal minimum increase rates (25% and 50%). Article L. 3121-33 governs the conditions for implementing replacement compensatory rest. Article L. 3121-38 defines the mandatory compensatory rest for hours beyond the limit.

Reference case law

The CJEU, 14 May 2019, case C-55/18 (Federación de Servicios de Comisiones Obreras v Deutsche Bank SAE) established the obligation for Member States to implement an objective and reliable system enabling measurement of daily working time duration for each worker. This decision, transposed into French labour inspection practices (DGT circular 2022-01), strengthens employers' documentary traceability obligations.

The Court of Cassation has further clarified (Cass. soc., 18 March 2020, No. 18-10.919) that the burden of proof for overtime is shared: the employee must provide sufficiently precise information on hours performed, and the employer must respond by producing its own control elements.

Tax and social obligations

Income tax exemption is codified in article 81 quater of the General Tax Code, amended by Law No. 2022-1158 of 16 August 2022 on emergency measures to protect purchasing power. The employer deduction is provided for in article L. 241-18 of the Social Security Code. Declarative procedures are detailed in URSSAF instructions and BOSS documentation (Official Bulletin of Social Security, "Overtime and supplementary hours" section, updated January 2026).

Penalties and litigation risks

Non-compliance with overtime rules exposes the employer to several cumulative risks: wage arrears with legal interest, damages for undisclosed work (art. L. 8221-5 C. trav.), URSSAF adjustment on evaded contributions, and criminal fine (art. R. 3124-2 C. trav.). In cases of deliberate undisclosed work, penalties can reach 3 years' imprisonment and €45,000 fine (art. L. 8224-1 C. trav.).

Usage scenarios: documentary management of overtime

Scenario 1 — An industrial SME with 80 employees on staggered hours

An industrial sector SME employing about eighty employees spread across three shift teams (morning, afternoon, night) must manage several dozen amendments monthly related to exceeding the collective limit, as well as forms for choosing between increased payment and replacement compensatory rest. Before dematerialisation, paper processing of these documents created signature delays of 5 to 10 days (site travel, internal mail loss) and filing errors affecting the company's defence during URSSAF inspections.

By deploying a qualified electronic signature solution compliant with eIDAS for formalising these HR documents, the SME reduced signature delays to less than 24 hours and eliminated document loss risks. According to sectoral benchmarks from ANDRH (2024), this type of approach reduces processing time for working time management documents by 60 to 75%.

Scenario 2 — A fast-food franchise network

A fast-food franchise network of about thirty outlets and approximately 400 fixed-term and permanent employees faces high overtime volumes during peak periods (school holidays, local events). The complexity stems from the multiplicity of applicable collective agreements depending on sites and the need to quickly notify affected employees of compensatory rest rights.

Integration of an electronic signature module into the network's HRIS enabled automation of compensatory rest rights notifications (art. D. 3121-18 C. trav.) and collection of signed electronic receipts. URSSAF data shows that franchise networks that have dematerialised this process reduce employment tribunal disputes by an average of 40% relating to contested overtime counts, due to insufficient documentary evidence on the employer's side.

Scenario 3 — An accounting firm managing payroll for its SME clients

An accounting firm of about twenty employees manages social matters for approximately 150 SME clients. For each client, it must formalise limit amendments, arrangement agreements and TEPA exemption documentation transmitted to URSSAF. Multi-client management made paper tracking untenable: risks of case file confusion, validation delays and absence of clear audit trail.

By adopting a multi-mandate electronic signature platform, the firm was able to centralise all documentary flows relating to overtime for its clients, with timestamped traceability per file. According to feedback published by OEC (French Institute of Expert Accountants, digital report 2025), this type of deployment generates productivity gains of around 3 to 5 hours per week per payroll manager, representing savings of approximately €8,000-12,000 per year for a firm of this size.

Conclusion

The legal calculation of overtime in 2026 rests on a layering of legal, collective and case law rules that neither HR teams nor legal departments can afford to ignore. Increase rates, annual limits, mandatory compensatory rest, TEPA exemptions and documentary obligations constitute many points of vigilance capable of generating costly disputes in case of error or lack of proof.

Rigorously formalising your HR documents relating to working time — amendments, recovery agreements, compensatory rest notifications — with an eIDAS-compliant electronic signature solution is today the best legal and operational guarantee. Certyneo offers you a secure, compliant and easy-to-deploy platform for all your teams.

👉 Discover how Certyneo secures your HR processes or start free from our pricing page.