Newsletter No. 7 – Social Law
Summary
LEGISLATION
Individual Social Declaration
Decree No. 2014-1371 of November 17, 2014 – Orders of December 11, 2014
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Administrative Decision Deadlines Decrees No. 2014-1290 and No. 2014-1291 of October 23, 2014
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Validation of Acquired Experience Decree No. 2014-1354 of November 12, 2014
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Summary Tables of Tariff Changes as of January 1, 2015
CASE LAW
… of November 13, 2014
In the absence of a lower trigger threshold set by the collective agreement, only hours worked beyond 1607 hours are considered overtime.
… of December 17, 2014
The fixed-day agreement provided for in the banking collective agreement is upheld by the Court of Cassation
… of November 13, 2014
The fixed-day agreement as provided for in the notary collective agreement is null and void
… of November 13, 2014
Equal treatment of employees
… of December 10, 2014
Dispute concerning severance pay
… of November 19, 2014
An employee whose dismissal is null and void cannot combine unemployment benefits with their wages
… of November 5, 2014
Termination of the employment contract during the probationary period
LEGISLATION
Nominative social declaration
The nominative social declaration (DSN) is designed to allow for the monthly and single transmission of data from companies to the various social protection organizations.
The implementation of this system is being phased in. Since 2013, companies have been able to use it voluntarily. The use of the DSN will be mandatory from April 1, 2015, for employers who submitted declarations in 2013.
- that is directly more than 2 million social security contributions;
- that is more than 1 million for those who use a third-party declarant (accountant in particular), provided that this third party declares for its entire client portfolio an amount of more than 10 million euros.
Finally, the system will be extended to all declarations and all companies from January 1, 2016.
Since 2013, four forms can be replaced by the DSN in companies that volunteer:
- the monthly declaration of workforce movements;
- the declaration of termination of an employee for supplementary or additional group contracts;
- the salary certificate for the payment of daily sickness, maternity and paternity allowances for the CNAM and the MSA;
- The employer's certificate for Pôle emploi (the French public employment service).
Decree No. 2014-1371 of November 17, 2014, relating to the nominative social declaration, completes the list of formalities which the DSN replaces (Art. R.133-14 IV of the Social Security Code): - salary certificates used to calculate daily allowances due for work-related accidents and occupational diseases;
- the statement of assignment contracts provided by temporary employment agencies;
- the summary statement of social security contributions;
- the declaration of regularization of social security contributions;
- the declaration of staff numbers to the collection agencies for the general social security scheme.
Access to the DSN (Déclaration Sociale Nominative - Nominative Social Declaration) system is electronic and can be obtained via two websites designated by a decree of December 11, 2014. Upon registration on one of these portals, a charter is provided to the employer using the DSN. The charter outlines the conditions and technical procedures for submitting the DSN and indicates the precautions to be taken when using this system.
The list of data collected and sent to the various organizations concerned is defined by a decree of December 11, 2014. The data is transmitted by the general social security funds, the URSSAF (Union for the Collection of Social Security and Family Allowance Contributions), and the national pension fund for salaried workers. For example, the appendix to the decree stipulates that the employee's social security number may be transmitted:
- to the local health insurance fund;
- to the family allowance funds;
- at Pôle emploi;
- to the department of animation, research, studies and statistics;
- at the national institute of statistics and economic studies;
- to supplementary organizations.
1 Decree No. 2013-266 of 28 March 2013 relating to the nominative social declaration
2. Order of 11 December 2014 approving the list of portals and the model charter relating to the nominative social declaration
3. Order of 11 December 2014 establishing the data for the nominative social declaration relating to employees covered by the general social security scheme, addressed to the competent administrations and bodies
Administrative decisions
Law No. 2013-1005 of November 12, 2013, authorizing the Government to simplify relations between the administration and citizens, amended Article 21 of Law No. 2000-321 of April 12, 2000, concerning the rights of citizens in their dealings with government agencies.
While the law of April 12, 2000, stipulated that silence from an administration for more than two months generally constituted a rejection, the law of November 12, 2013, establishes the opposite principle: "Silence from the administrative authority for two months on a request constitutes acceptance."
Decrees No. 2014-1290 and No. 2014-1291 of October 23, 2014, establish exceptions to the rule of implicit acceptance in the new Article 21 of Law No. 2000-321 of April 12, 2000, concerning citizens' rights in their dealings with government agencies. These two decrees, which entered into force on November 12, 2014, specifically address exceptions to this article in the context of citizens' interactions with the Ministry of Labor, Employment, Vocational Training, and Social Dialogue and its administration.
Decree No. 2014-1290 specifies the list of procedures under the Ministry of Labor, Employment, Vocational Training, and Social Dialogue for which implicit acceptance by the administration is granted after a period different from the standard two-month period. The timeframes set by this decree vary between eight and thirty days.
The requests covered by these exceptions relate to the organization of working and rest periods. The request for an exemption from the minimum daily rest period and the authorization to exceed the maximum daily working time per employee are thus granted, in the absence of any response from the administration, after a period of fifteen days. Similarly, in the absence of any response from the administration, the authorization to implement flexible working hours and the authorization to organize work continuously for economic reasons and to allocate weekly rest periods on a rotating basis are granted after a period of thirty days.
Decree No. 2014-1291 concerns administrative procedures to which the rule of "silence means acceptance" does not apply. On the contrary, the administration's silence for two months constitutes a rejection decision for the requests listed in the appendix to the decree.
In this regard, the silence maintained by the administration for two months constitutes a rejection of the request:
- authorization for the mutual termination of the employment contract of protected employees;
- extension of the temporary exemption to Sunday rest;
- authorization to transfer the employment contract of an employee included in a partial transfer of a business or establishment.
Validation of prior learning and experience
Decree No. 2014-1354 of November 12, 2014, concerning various measures relating to the validation of prior learning, was issued pursuant to Law No. 2014-288 of March 5, 2014, relating to vocational training, employment, and social dialogue.
The decree, which entered into force on November 15, 2014, relaxes the eligibility requirements for leave for validation of prior learning, specifically for individuals with fixed-term contracts (CDD). The requirement to have been employed under a fixed-term contract has been eliminated. Now, a fixed-term contract holder must demonstrate twenty-four months of paid employment or apprenticeship, consecutive or not, regardless of the nature of the successive contracts, during the last five years to be eligible for leave (Article R.6422-7-1 of the French Labor Code).
The decree specifies that the leave takes place outside the period of performance of the employment contract and must begin no later than twelve months after the end of the contract (Art. R.6422-7-2 of the French Labor Code). However, leave for validation of prior learning may be taken, at the employee's request and with the employer's agreement, in whole or in part before the end of the employment contract.
The procedures for supporting candidates in the validation of prior learning process are detailed in the decree (Art. R.6423-1 to R.6423-4 of the French Labor Code). This support is tailored to the candidate's needs. It includes a core module consisting of methodological assistance in describing the candidate's activities and experience in relation to the requirements of the targeted certification framework, in formalizing their validation portfolio, in preparing for the interview with the jury, and, where applicable, in a practical assessment. It may also include assistance with career guidance and finding funding for supplementary training.
Finally, the regional committee for employment, training and vocational guidance and the National Council for Employment, Training and Vocational Guidance are designated to ensure the statistical monitoring of the path of candidates for validation of acquired experience (Art. R.6423-5 of the Labour Code).
Price changes
Revenues
| 2014 | 2015 | |
| Minimum wage | €9.53 or €1445.42 | €9.61 or €1457.55 |
| Social security ceiling |
€3129 (monthly value) €172 (daily value) |
€3170 (monthly value) €174 (daily value) |
| Monthly internship stipend (amount exempt from social security contributions) | €436.05 (until 30/11/2014) €487.03 (from 01/12/2014 to 31/12/2014) |
508,20 € (from 01.01.2015 to 31.08.2015) |
| basic RSA | 509,30 € | 513,88 € |
| Specific solidarity allowance | 16,11 € | €16.25/day |
Costs
| 2014 | 2015 | |
| Meal vouchers: Employer contribution exemption |
5,33 € | 5,36 € |
Legal interest rate
| 2014 | 2015 | |
| Natural persons outside of a professional context | 0,04 % | 4,06% |
| Other cases | 0,93% |
CASE LAW
Overtime trigger threshold
Soc. November 13, 2014 (n°13-10.721) FS-P+B:
An extended collective bargaining agreement or a company or establishment agreement may stipulate that the weekly working hours may vary over all or part of the year, provided that, over a one-year period, these hours do not exceed a ceiling of 1,607 hours. The agreement may set a lower ceiling.
In this case, the collective working hours adopted following a 1997 agreement provided for 32 hours and 30 minutes per week, totaling 1,470 hours. However, the agreement did not specify how hours worked beyond this limit would be compensated. According to the Court of Cassation, "in the absence of a lower threshold set by the collective agreement, only hours worked beyond 1,607 constitute overtime."
Collective agreements for the banking and notary sectors: fixed-day contracts
Soc. December 17, 2014 (n°13-22.890) FS-P+B:
The agreement on the organization and reduction of working time in the banking sector of May 29, 2001 stipulates that:
- The calculation of days and half-days worked is done on the basis of a self-declaration system;
- The organization of employees' work must be regularly monitored by management, who will pay particular attention to any potential workload overloads. In such cases, an analysis of the situation will be carried out, and where appropriate, all necessary measures will be taken to ensure compliance, in particular, with the minimum daily rest period stipulated in Article L. 220-1 of the French Labour Code and to avoid exceeding the number of days worked, within the limits set out in the last paragraph of Article L. 212-15-3-III of said Code;
- The workload assigned and the resulting length of the working day must allow each employee to take the mandatory daily rest period referred to above;
- The minimum duration of this rest is legally set at 11 hours taken consecutively and, where applicable, according to the terms of Article 63 of the bank's collective agreement.
According to the social chamber, the provisions of the agreement meet the requirements relating to the right to health and rest.
Soc. November 13, 2014 (n°13-14.206) FS-P+B:
In this ruling, the Court of Cassation considers that the fixed number of days as provided for by the collective agreement of the notary profession is null and void.
According to the Court, "the provisions of Article 8.4.2 of the national collective agreement for notaries of June 8, 2001, which merely stipulate, firstly, that the length of the working day must not exceed 10 hours except in cases of exceptional workload overload, and secondly, that each quarter, each employee concerned must complete a review of their working time, which they must provide to the employer and on which they must specify, where applicable, their usual arrival and departure times in order to assess the usual length of their working days and to remedy any excesses, are insufficient to guarantee that the length and workload remain reasonable and ensure a proper distribution of the employee's work over time, and therefore, to ensure the protection of the employee's safety and health, from which the Court of Appeal should have concluded that the fixed-day work agreement was null and void.".
An employee's qualities cannot justify a difference in treatment during the hiring process
Soc. November 5, 2014 (n°12-20.069) FS-P+B:
In this case, an employee alleges before the labor court that his employer has failed to respect the principle of "equal pay for equal work" and is seeking payment of various sums. In support of his claim, the employee cites the fact that one of his colleagues, holding the same position within the same department, but with less seniority, had an almost identical job classification and received a salary 20% higher than his own.
The Court of Cassation held that "while professional qualities or differences in work quality may constitute objective grounds justifying a difference in treatment between two employees holding the same position, such factors, which could justify larger salary increases or faster progression up the pay scale for the more deserving employee, cannot justify a difference in treatment at the time of hiring, when the employer has not yet been able to assess the professional qualities."
In the following paragraph, the Court added that "the mere difference in qualifications does not justify a difference in remuneration between employees performing the same duties, unless it is demonstrated, through supporting evidence—the reality and relevance of which are to be verified by the judge—that possession of a specific qualification attests to particular knowledge useful for the performance of the duties of the position held."
The dispute concerning severance pay
Soc. December 10, 2014 (n°13-22.134) FS-P+B:
The employment contract of an employee of a sole proprietorship was taken over by a limited liability company (SARL). The employee's fifteen years of service were expressly retained.
Subsequently, the employer and the employee signed a termination agreement under which the employee's length of service was reduced to nine months. The employee brought the matter
before the labor court. The Court of Appeal dismissed her claims for payment of a negotiated termination indemnity and damages.
The Court of Cassation overturned the judgment on the grounds that: "the absence of a request to annul the negotiated termination agreement, and therefore the absence of any grounds for such a request, does not preclude an employee from demanding that the employer comply with the provisions of Article L. 1237-13 of the French Labor Code relating to the minimum amount of the specific indemnity for such a termination." In this ruling, the Court of Cassation acknowledges that one of the parties to the termination agreement may subsequently contest the terms of the contract without contesting its validity.
Combining earnings and unemployment benefits
Soc. November 19, 2014 (n°13-23.643) FS-P+B+R:
In this case, the Court of Appeal noted that the employee had obtained a judgment against his employer for the payment of compensation in lieu of salary for the period between his unlawful dismissal and his reinstatement and decided that the payment of unemployment benefits paid by the insurance body for this period was undue.
The Court of Cassation upholds the decision of the Court of Appeal:
"but given that in its relations with the unemployment insurance body, an employee whose dismissal is null and void because it was pronounced without administrative authorization or despite a refusal of authorization, is not entitled to combine unemployment benefits with his remuneration or compensation equivalent to that.".
Respecting the notice period cannot lead to termination of the contract beyond the trial period
Soc. November 5, 2014 (n°13-18.114) FS-P+B:
The employment contract of an employee hired on January 17, 2011, stipulated a three-month probationary period, renewable. By letter dated April 8, 2011, the employer informed the employee that the probationary period was unsuccessful and that, to comply with the fifteen-day notice period, the employment contract would be terminated effective April 22, six days after the end of the probationary period.
The case was referred to the Court of Cassation as to whether the employment contract had been terminated during the probationary period.
According to the Court of Cassation, the employment relationship continued beyond the end of the probationary period. Consequently, the employee was entitled to damages for wrongful and unfair dismissal.
