My boss doesn’t pay me for all my hours. What can I do?

HOW TO CLAIM BACK PAY

What is back pay?

Back pay proceedings are only used in cases where an employer has undervalued an employee’s pay, for example :

• Errors in calculating bonuses due,
• Any reimbursements of professional expenses,
• and overtime worked by the employee during the month.

How do I determine the amount of my back pay?

First and foremost, you need to count your hours, which will serve as a basis for your claims.

Don’t hesitate to look at your contract of employment and payslip to compare them with your actual working hours.

If we take the example of overtime, Article L. 3121-22 of the Labour Code specifies that payment for the first eight hours of overtime gives rise to an increase of 25%, after which it is increased to 50%.

So, if you usually work a 35-hour week and are paid €10 an hour, and this month you have worked ten hours of overtime that does not appear on your payslip:

Your first 8 hours of overtime will be paid as follows:

• 8 x (€10 x 1.25) = €100.

The ^9th and ^10th hours of overtime are paid as follows:

• 2 x (€10 x 1.50) = €30.

You will therefore be entitled to €130 in back pay.

If an employer fails to pay you, or pays you only in part or late, they are committing a criminal offence punishable by a fine of up to €2,250 for 3rd class offences.

Time limits for taking action

Be careful, the time limit for bringing an action for back pay is three years from receipt of each of your pay slips (art. L. 3245-1 of the Labour Code).

You should therefore act quickly.

How do I get back pay?

THE PRE-LITIGATION PHASE :

First and foremost, an amicable negotiation phase should be initiated to put an end to the disturbance.

Once you have drawn up a list of your unpaid hours, you should inform your employer verbally.

It is important to establish a dialogue with your employer. Agreement is always preferable to conflict.

If you don’t see any reaction from your employer, don’t hesitate to follow up several times by e-mail.

Don’t forget to mention the various discussions you’ve had with your employer on this subject. This will form the basis of evidence before the judge.

If you are faced with a recalcitrant employer, you should send him a letter of formal notice by recorded delivery with acknowledgement of receipt.

GOLDWIN’s team of employment lawyers will be happy to advise you on how to draft this crucial letter.

THE LITIGATION PHASE :

Faced with your employer’s ignorance, you have no choice but to settle your dispute in court. Although it is not compulsory to be represented by a lawyer before the Labour Court, it is a good idea to be accompanied by a lawyer specialising in employment law, who will work with you to determine the best strategy to adopt.

How do I take my case to the industrial tribunal?

First of all, you need to determine which industrial tribunal has jurisdiction over your dispute. Employees have a choice here. The Conseil de Prud’hommes can be :

This choice is very advantageous for employees and is not insignificant. Some industrial tribunals are more overcrowded than others, which has a significant impact on the way your dispute is handled.

GOLDWIN’s team of employment lawyers will be able to use their expertise to give you the best possible guidance in bringing your case.

As disputes over back pay are urgent, you can take your case to the Conseil de Prud’hommes in summary proceedings or by using the accelerated procedure on the merits. Here again, you will need the assistance of a lawyer to guide you.

Conciliation

If your employer is prepared to talk to you, it is always preferable to reach a settlement. Conciliation can take place at any stage of the procedure.

There are many advantages to conciliation.

• The sums you receive in back pay are net of social security contributions (CSG/CRDS).
• This means that you will receive compensation more quickly and avoid the risks and time involved in industrial tribunal proceedings.
• Lastly, it means that you can stay on good terms with your employer for the future, especially if you wish to continue working for the company.

You should call on the GOLDWIN team of employment lawyers to negotiate your rights and interests in the best possible way. The lawyer will be able to calculate the amount of the compromise indemnity that you can receive from your employer, taking into account the elements of your case and what would have been awarded to you by the Conseil de Prud’hommes if you had opted for legal proceedings.

If an out-of-court settlement is reached, you can then apply to the Conseil de Prud’hommes to have the settlement approved by the conciliation board.