France’s labor code does not ordinarily consider an employee’s commute as effective working time. When the commute’s length surpasses the usual trip between one's home and the workplace, however, the employee must be compensated with either time or money. This leaves room for questions regarding employees who are constantly on the move: Is their transit working or rest time? And should it be compensated?

Much of the debate has stemmed from the EU’s 2003 Working Time Directive (here referred to as the “2003 EU Directive”), which outlined a number of specific protections for itinerant and sedentary workers alike. The Directive was left to individual EU states to adopt and implement.

The Decision of the European Union Court of Justice: CCOO v. Tyco (2015)

Because the implementation of the 2003 EU Directive was left to individual states, leaders of the EU, including France, are still questioning whether commutes qualify as working or rest time. A 2015 case before the European Union Court of Justice (EUCJ) helped spur this dialogue.

The case involved the Spanish businesses Tyco Integrated Security and Tyco Integrated Fire & Security Corporation Services (here referred to as “Tyco”), which install and maintain security systems. In 2011, they eliminated their regional offices. Tyco technicians were then individually assigned to cover certain regions, and it became normal for these regions to include an entire province or even parts of multiple provinces, leading to one-way commutes of up to 65 miles. Tyco had previously considered employees' working time to begin once they arrived at their first client and end once they left their last client.

The Spanish National Audience appealed to the EUCJ, asking how Tyco’s policy stood in light of the 2003 EU Directive. In September 2015, the EUCJ ruled that workers without a daily work site must be monetarily compensated for their commutes. This decision set clear precedent for the EU’s expectations of the implementation of its 2003 Directive: employees must be compensated for all time they spend at the disposal of an employer. But because the EUCJ’s jurisprudence was specific to Spain and the Spanish labor code, Tyco left many open questions about itinerant workers elsewhere.

How has this affected France, and what more is to come?

Case Summary: M. Z v. Colly Services (2018)

The French Supreme Court recently heard a case concerning itinerant workers that resembled the Tyco case. An employee appealed a May 2016 ruling by Lyon’s Court of Appeals. Like Tyco’s employees, he spent a significant amount of time traveling from his home to his first and last clients. Unlike Tyco’s employees, however, he was compensated with either time or money, according to French labor code.

The employee had previously signed a document that modified his initial work contract. Key modifications included a work week of 42 hours, an allowance of up to 16 compensated hours per week for work-related transit, and acknowledgement that, due to the nature of the employee’s position, the described weekly schedule would exceed maximum work hours. Despite having been compensated, the employee argued that his weekly work schedule was in violation of the 2003 EU Directive’s limit of 48 hours of working time per week. He claimed that his employer had not respected his rest time or limits on weekly hours, refused to grant supplementary rest time, paid leave, or overtime for the hours worked beyond 42 per week, and failed to compensate him or pay damages for a violation of an employee’s rights to proper rest time.

The Court’s Decision: M. Z v. Colly Services (2018)

The court issued a decision on May 30, 2018 that harkens back to the core of French labor code and the 2003 EU Directive.

The decision states that the 2003 EU Directive addressed only working versus rest time – the concept of paid commutes was a separate issue. Additionally, it asserts that EUCJ decisions cannot directly be applied to all situations. Decisions are merely interpretations of law that vary depending on individual circumstances. Because Spain had no compensation plan that applied to the commutes of itinerant workers prior to 2015, the EUCJ decided that itinerant workers must be compensated for their commutes. To do otherwise would be in violation of the 2003 EU Directive. The Tyco decision was then universally interpreted to mean that, since employees must be paid for it, itinerant workers’ commutes are official working time.  

The French Supreme Court thus reasoned that the only concrete precedent set by Tyco is that employers must compensate itinerant workers for their commute to and from their first and last client. And France’s labor code already mandates this. As noted, when the length of the commute surpasses the usual trip between one's home and the workplace, an employee shall be compensated with either time or money. Unlike Tyco, the French employer was not in violation of the 2003 EU Directive because the employee was being paid in compliance with French labor law. The Court therefore ruled that the employee’s working time and compensation are indeed legal and that the French employer does not need to give additional rest time, paid leave, or overtime, and it does not need to pay damages.

In the wake of Tyco, the French Supreme Court’s May 30 decision raises a host of new questions. Will other EU countries follow suit? And, more abstractly, should France’s interpretation eventually change to consider the paid commutes of itinerant workers as effective working time? Indeed, these ostensibly contradictory decisions are forcing Europe to think hard about the spirit of the 2003 Directive and how to integrate it into employment law.