Partial activity – Controls and appeals

• Compensation rate
• Controls
• The fraud
• Penalties
• Appeal procedure

I. Compensation Rate

Companies benefiting from special provisions

Decree No. 2021-221 of February 26, 2021, officially confirmed the maintenance of the compensation rates previously in place.

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

• protected companies (those referred to in Annex 1 and 2 of Decree No. 2020-810 of June 29, 2020) which are experiencing a sharp decline in activity (decree not published to date) and companies which have an activity related to those of protected companies and which are experiencing a loss of turnover of at least 80%;
• companies located in the catchment area of ​​a ski resort that are experiencing 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 are no longer experiencing a sharp decline in turnover will see the compensation rate reduced to 60% from April 1st until April 30th.

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

For the employee : the compensation paid to the employee will be maintained at 70% until April 30, then will decrease to 60% after that date.

Therefore, there may be some for said companies.

Other companies

Other companies will receive compensation of 36% starting from April 1, 2021.

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

Therefore, there will be a remaining cost for these companies.

II. Controls

The latest figures indicated that nearly 50,000 post- had led to the initiation of nearly 400 criminal proceedings.

The control plan includes three types of checks:

• the detection and cross-referencing of administrative data;
• a documentary review allowing for an examination of the file and the documents necessary for the investigations;
• an on-site inspection allowing for a thorough review of a situation, or even direct questioning of the company manager, staff representatives and employees.

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

III. Fraud

It could be considered in the following cases:

• claim for compensation for employees working remotely;
• claim for compensation for employees who have taken paid leave, RTT days or are on sick leave;
• claim for compensation for fictitious employees;
• declaring an hourly rate higher than the actual rate;
• declaration of a number of hours of unemployment greater 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 case of error, the guidelines of the Ministry of Labour call for initiating 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. Sanctions

If fraud is proven, the offending company may be subject to several penalties:

• reimbursement of all or part of the public aid received during the 12 months preceding the penalty;
• prohibition from receiving public aid for employment or vocational training for a maximum period of 5 years;
• 2 years imprisonment and a fine of 30,000 euros, pursuant to Article 441-6 of the Penal Code (offense of false declaration).

Furthermore, the employer is liable to a claim for back pay corresponding to the difference between the amount of the partial activity allowance and the amount of salary that the employee should have received.

Finally, if the false declaration covers a situation of undeclared work, the company risks an URSSAF adjustment on this basis, knowing that in this case the latter applies a 25% surcharge on the amount of social security contributions to be recovered.

V. Legal recourse

If the administration cancels the authorization it had granted and demands the return of the allowances paid, the company can file an administrative appeal with the competent DIRECCTE .

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

These appeals must be filed within two months of the contested decision (where the terms and conditions of appeal are referred to in said decision).