SEASONAL EMPLOYMENT CONTRACTS
These contracts, common in the HRCs, are fixed-term and must therefore comply with the legal provisions governing fixed-term contracts. They are concluded under Articles L 122-1-1 3e; L 122-3-4, D 121-2 and the collective bargaining agreement for the hospitality industry (Article 14).
The hospitality industry may only use them in cases defined by law (e.g., replacing an absent employee, suspending an employee’s contract, the permanent departure of an employee prior to the elimination of their position, awaiting the start date of an employee hired on a permanent contract, etc.).
The contract must be in writing and include a precise definition of the reason for its use, as indicated above. Otherwise, it is considered to be a contract of indefinite duration.
It must specify the exact number of working hours. Otherwise, it is presumed to be full-time.
The hotel, restaurant, and catering (HRC) sector must therefore be very careful when drafting a fixed-term contract (CDD).
It can be concluded with employees, technicians, supervisors, or managers.
1 – What is the length of the trial period?
It is a maximum of one day per week, up to a limit of two weeks, for a fixed-term contract with an initial duration of six months or less, and one month for a fixed-term contract with an initial duration of more than six months.
However, it can be shorter if the parties agree in writing, but not longer.
It can be renewed if its duration does not exceed the legal duration indicated above. For example, if the HRC has stipulated a 15-day trial period for a contract of more than six months, note: the employee’s signature alone on a document drawn up by the employer does not constitute agreement.
The trial period should not be confused with the professional trial period, which takes place before the conclusion of the employment contract.
Example: A trial day on December 31, 2016, a fixed-term contract starting January 1, 2017, a one-month trial period, and termination on February 1, 2017.
Note: It is mandatory to pay the employee for the trial day. In practice, the trial day should also be considered the first day of the trial period, as a termination could be considered by some judges as having occurred after the trial period has expired if it extends by one day. Consequently, the hotel, restaurant, or catering (HRC) establishment would then owe the employee notice and potential damages if the employer takes legal action for wrongful termination due to lack of justification.
In our example, the termination can only take effect no later than January 31, 2017 (and not February 1, 2017).
2 – What is the notice period for terminating a fixed-term contract?
Notice period to be respected by the employer and the employee:
– 24 hours during the first 7 days of employment
– 48 hours between 8 days of employment and 1 month.
The length of the notice period must not extend the duration of the trial period. Otherwise, the contract will become permanent.
Example: A restaurant manager hires a waiter on a fixed-term contract from January 1st to June 30th. The trial period will end on January 31st. The notice period is therefore 1 month. If the employer wishes to terminate the trial period, they can do so at any time during it (e.g., on January 30th), but risks having the employment contract declared permanent if the employee works beyond January 31st.
3 – What is the contract duration?
A seasonal contract is for a fixed term (fixed start date), either for the season, which generally corresponds to the opening and closing dates of the seasonal establishment, usually from March to September, or from September to March, or any other period depending on the activity of the hotel, restaurant, or café (HORECA). In this case, the contract, with a minimum duration of one month, is intended for the entire season.
However, an establishment open year-round may enter into a seasonal contract for the summer, winter, or another season, provided that it does not permanently fill a position related to the normal and ongoing operation of the business. Replacing a permanent employee in a permanent position risks having the seasonal contract reclassified as a permanent contract.
In any case, the seasonal contract cannot last more than nine months (Article 14 of the CCN/Collective Bargaining Agreement).
4 – CONTRACT RENEWAL:
Employment contracts have always included a clause allowing the parties to renew the contract, granting priority to the employee for renewal of their seasonal contract from one season to the next. In this case, one or both parties must confirm their intention to renew the contract by registered letter at least two months in advance. If no confirmation is received, the renewal clause becomes invalid (Article 14 of the Collective Bargaining Agreement).
The new Article 1244-2-1 of the French Labor Law Code, through its ordinance of April 28, 2017, establishes a genuine right for employees to renew their contracts. Two conditions apply:
- The seasonal worker must have worked two consecutive seasons over two years with the company, and
- the hotel, restaurant, or catering establishment (HORECA) must have a seasonal position available that matches the employee’s qualifications.
5 – Can the hotel, restaurant, and catering (HRC) sector stipulate that the working hours of seasonal employees will be annualized?
Under the law, working hours are calculated on a weekly basis: hours exceeding 35 are paid at the following rates: from the 36th to the 39th hour: 10%; from the 40th to the 43rd hour: 20%; from the 44th hour onwards: 50%.
The overtime quota is set at:
• 360 hours per year for permanent establishments;
• 90 hours per calendar quarter for seasonal establishments.
Overtime hours compensated by time off are not included in this quota.
It is possible to annualize the working hours of seasonal employees provided that an entire entity, department, or the company adopts this system for all employees.
Under an annualized permanent contract, working time is calculated over the year (and no longer on a weekly basis): a hotel, restaurant, or café (HRC) that employs more than 1,607 hours per year owes overtime pay. This overtime will be paid at the following rates: between:
– 1,607 hours and 1,790 hours (corresponding on average to the 36th, 37th, 38th, and 39th hours): overtime is paid at a 10% premium;
– 1,791 hours and 1,928 hours: overtime is paid at a 20% premium (corresponding on average to the 40th, 41st, and 42nd hours);
– 1,929 hours and 1,973 hours: overtime is paid at a 25% premium (corresponding on average to the 43rd hour);
– From 1,974 hours: they are paid at a 50% premium (corresponding on average to the 44th hour and beyond).
Therefore, there is a slight difference this time in the premium rate for 1,929 hours and 1,973 hours per year.
In seasonal contracts, the calculation is the same, except that it is prorated over the reference period (maximum 9 months, i.e., 1607/12 x 9 = 1205 hours).
Thus, the hotel, restaurant, and catering (HORECA) establishment does not owe overtime pay for hours worked below the reference period (1,205 hours over 9 months). If the establishment is open for a season (for example, 6 months), hours worked beyond 1607/2 = 803 hours and 50 minutes must be paid at the premium rate indicated for the annualization of permanent contracts, unless they are compensated by equivalent time off.
Of course, the maximum working hours of 48 hours per work week (or 46 hours over a period of 12 consecutive weeks) and 10 hours of rest between two workdays for seasonal workers must be respected.
6 – Can the hotel, restaurant, and catering (HORECA) sector enter into fixed-rate agreements for seasonal contracts?
The French Labor Law Code allows for fixed-rate agreements with both managerial and non-managerial staff, provided that these employees have autonomy in organizing their working time, taking into account their responsibilities (e.g., restaurant or hotel manager, etc.) (Article L3121-58).
For the specific activity of the HORECA sector, the HORECA sector can enter into a fixed-rate agreement based on days worked if its employees have significant autonomy in organizing their working time. The Amendment of October 22, 2016, provides for the possibility of entering into such agreements for autonomous managers. However, the law expressly provides for this possibility for non-managerial staff who have autonomy in organizing their working time.
Example: Restaurant manager.
See the article on “The Cost of Labor: Overtime in the Hotel, Restaurant, and Catering Industry” written by the firm.
Working time is calculated here in days per year or prorated over a reference period of up to 9 months (and not in hours).
The hotel, restaurant, and catering (HORECA) establishment will not have to pay overtime under this fixed-day agreement.
Example: If the employee has worked 43 hours per week over 218 days per year: there are no overtime hours to pay because the 43 hours are included in the 218-day agreement.
7 – Should seniority be taken into account in seasonal contracts?
Yes, since April 28, 2017, seniority is taken into account for the same seasonal worker, even when their contracts have been interrupted by periods of inactivity in the same hotel, restaurant, or café (HORECA). Therefore, if an HORECA hires a seasonal worker for the summer of 2017, it must, for the summer of 2018, include the first day of the 2017 season as the seniority date on the payslip.
– Public holidays :
*Under the permanent establishment system:
– All employees with one year of seniority in the same establishment and/or company are entitled to 10 public holidays per year, in addition to May 1st.
– In any case, employees are granted 6 guaranteed public holidays for a full-time employee (pro-rated to working hours for part-time employees). Appendix II of Amendment No. 2 to the National Collective Bargaining Agreement for Hotels, Cafés, and Restaurants is amended accordingly. Employees are entitled to 6 days off, paid or compensated with time off, even if they are on a scheduled day off. Example calculation: an employee with a 4-month contract is entitled to 4/12 of 5 guaranteed public holidays, or 1.66, rounded up to 2 guaranteed public holidays.
The 4 remaining public holidays are granted according to the following terms:
- The public holiday is a day off; taking time off on public holidays must not result in any reduction in salary;
- If the establishment’s operations require the employee’s presence, the employee is entitled to 1 compensatory day off;
- A public holiday coinciding with a day off does not give rise to compensation or payment (Article 6 – 1)
* Employees of seasonal establishments and those under seasonal contracts in permanent establishments with 9 months of seniority in the same establishment and/or company (seniority which can now be accumulated from one year to the next according to the El Khomri Law) are entitled, in addition to May 1st, to public holidays (rounded up to the nearest whole number) according to the application procedures defined in point 1) of Article 6 of this amendment and pro rata to the duration of the employment contract.
8 – End of the seasonal contract:
It ends at its expiry date or at the end of the season (if the contract specifies that its end will correspond to the end of the season) without the hotel, restaurant, or catering establishment (HORECA) being required to pay the end-of-contract bonus.
If the hotel, restaurant, or café (HORECA) terminates the contract before its expiry date (in our example: February 10), it must pay the employee compensation equal to the wages and accrued vacation pay until the contract’s expiry date (June 30), as with any fixed-term contract termination, except in cases of serious or gross misconduct by the employee or if it is impossible to maintain the contract (e.g., the employee’s residence permit has expired).
The seasonal contract must therefore be carefully designed to best serve the interests of all parties involved, and for this reason, it is strongly advised to consult a lawyer specializing in the HORECA sector.