The status of senior management under labour law
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Being involved in management tasks, senior management staff have a distinct role to play in the company and so enjoy special status. Being awarded this status has significant consequences in terms of employee rights.
How to proceed
Who can be considered a senior manager?
A number of conditions must be met for salaried workers to be considered senior managers.
Pay-related criterion
In the first instance, senior managers must have a significantly higher salary than other salaried workers.
This markedly higher salary is assessed in reference to the worker's overall annual salary and includes all bonuses and benefits in cash or in kind (such as a company car) added to the monthly salary.
This remuneration must also take account of the time taken by the salaried worker to perform all their duties.
Role-related criterion
To be considered a senior manager, the worker must be in a position of authority over other employees, but this criterion alone does not entitle the worker to senior management status.
Senior management may also include employees who are in charge, on a relatively autonomous basis, for an area of activity or a department, whether or not they have other workers under them.
In addition, management duties involve a high level of independence in terms of organisation of work as well as a great deal of flexibility in terms of working hours (senior managers are not required to clock in).
Acquiring senior management status
Senior management status should, in principle, have been agreed upon by the employer and the worker when the employment contract is signed.
Salaried workers may also obtain senior management status by means of a promotion, in which case a contract addendum is all that is needed for the new senior management status to be granted.
Senior management status may also arise, by implication, as a result of the duties actually performed.
The consequences of senior management status
Senior management is, in principle, not included in the scope of the collective agreement applicable to the company. Senior mangers do not, therefore, enjoy the benefits that may be contained in the collective agreement such as, a 13th month, economic bonuses or even notice periods in the event of their contract being terminated.
Quite exceptionally, neither are senior managers subject to rules on working time, nor to rules on weekly rest periods for salaried workers, as their presence is crucial to the operation of the company. They are, however, entitled to statutory public holidays and statutory annual leave.
In contrast, salaried workers who are not irreplaceable, given the specific nature of their tasks, must be given Sundays off as well as being subject to legislation with regard to working time. The working day cannot, therefore, exceed 10 hours per day or 48 hours per week.
On the other hand, whether or not senior managers are crucial to the smooth operation of the company, they are not covered by legislation on overtime – i.e. overtime payments or time off in-lieu.
Limitations of senior management status
Salaried workers not fulfilling the salary requirement, nor the conditions of autonomy and managerial authority, cannot be considered senior managers, even with their consent or at their request, and even if stipulated in their contract.
Salaried workers not covered by the definition of senior management enjoy the benefits of the collective agreement and legislation on working times.
Employment contract or collective agreement clauses that contradict this rule are rendered null and void by public order.
