Partial activity – Checks and appeals

• Compensation rate
• Controls
• Fraud
• Penalties
• Remedy

I. Rate of compensation

Companies benefiting from special provisions

Decree No. 2021-221 of February 26, 2021 formalized the maintenance of the compensation rates previously practiced.

For the employer : the compensation rate is maintained at 70% until June 30, 2021, for the following companies:

• protected companies (those referred to in appendix 1 and 2 of decree no. 2020-810 of June 29, 2020) which are experiencing a sharp drop in activity (decree not published to date) and companies which have an activity related to those of companies protected and which suffer a loss of turnover of at least 80%;
• companies present in a catchment area of ​​a ski resort suffering a loss of turnover of at least 50%;
• companies subject to territorial health restrictions suffering a loss of turnover of at least 60%;
• companies whose main activity involves welcoming the public and is interrupted.

Protected companies that no longer suffer a sharp drop in turnover will see the rate of compensation reduced to 60% from April 1, until April 30.

After this date, the compensation rate will be set at 36%.

For the employee : the indemnity paid to the employee will be maintained at 70% until April 30, then will increase to 60% after this date.

There may therefore be for the said companies.

Other companies

Other companies will be paid compensation of 36% from April 1, 2021.

The compensation paid to the employee will be 60% from April 1, 2021.

There will therefore be a remainder payable by the said companies.

II. Controls

The latest figures reported nearly 50,000 a posteriori having led to the initiation of nearly 400 criminal proceedings.

The control plan provides for three types of checks:

• detection and cross-referencing of administrative data;
• a control on documents allowing an examination of the file and the documents necessary for the investigations;
• an on-site check enabling in-depth monitoring of a situation, or even direct questioning of the company manager, staff representatives and employees.

Companies that are not targeted by the administrative closure measures will have to justify the reasons which led them to request partial activity, in particular when their workforce is mainly composed of executives able to telework.

III. Fraud

It could be retained in the following cases:

• claim for compensation for employees working from home;
• claim for compensation for employees who have taken paid leave, RTT days or sick leave;
• claim for compensation for fictitious employees;
• declaration of an hourly rate higher than the reality;
• declaration of a number of non-working hours higher than the reality.

Fraud must be distinguished from error, particularly in that it is intentional.

The error presupposes in particular the good faith of the declarant.

In the event of an error, the directives of the Ministry of Labor call for a dialogue “ with a view to an amicable regularization ” for which “ the financial situation of the company will be taken into account in the terms of reimbursement ”.

IV. Penalties

If the fraud is characterized, the offending company can be condemned to several sanctions:

• reimbursement of all or part of the public aid received during the 12 months preceding the verbalization;
• prohibition to benefit, for a maximum period of 5 years, from public aid for employment or vocational training;
• 2 years' imprisonment and a fine of 30,000 euros, in application of article 441-6 of the Criminal Code (offence of false declaration).

In addition, the employer is exposed to a request for back pay corresponding to the difference between the amount of the partial activity allowance and the amount of the salary that the employee should have received.

Finally, if the false declaration covers a situation of concealed work, the company incurs a recovery from URSSAF in this respect, knowing that in this case the latter applies a 25% increase on the amount of contributions and social security contributions to be recovered.

V. Remedies

If the administration cancels the authorization it had granted and asks for the reimbursement of the allowances paid, the company can lodge an administrative appeal with the competent DIRECCTE .

This appeal takes the form either of an informal appeal to the authority that took the said decision, or of a hierarchical appeal to the Minister of Labour, or of a judicial appeal to the competent administrative tribunal.

These appeals must be lodged within two months of the contested decision (when the terms and means of appeal are referred to in the said decision).