Newsletter No. 16 – Social Law
Summary
Regulations
Sunday work
– Maillé Law – Macron Bill
–
Consideration of internship periods by the old-age insurance scheme –
Decree of March 11, 2015
Case law
… of February 11, 2015
Validity of the designation of a mandatory supplementary insurance provider
… of February 11, 2015
Reminder concerning the exercise of the right to strike
… of February 11, 2015
Unenforceability of an amendment to the company rules
… of March 3, 2015
Entitlement of the Health, Safety and Working Conditions Committee (CHSCT) to receive compensation for damages resulting from an infringement of its prerogatives
… of February 12, 2015
Social security contributions: inclusion of compensation for violation of an employee's protected status
… of March 3, 2015
Waiver of the non-compete clause
… of March 11, 2015
Employer's obligation of result regarding the protection of the health and safety of the employee
… of February 10, 2015
Professional nature of text messages sent or received on a company-provided phone
Regulations
Sunday work
The principle
Regulations concerning employee rest periods stipulate that employers may not require an employee to work more than six days per week (Art. L. 3132-1 of the French Labor Code). This weekly rest period, with a minimum duration of 24 hours, in addition to daily rest periods, must in principle be granted on Sunday (Art. L.3132-3 of the French Labor Code). Since
certain activities must necessarily be maintained throughout the week, several exceptions allowing for Sunday work have been established and are subject to relatively strict regulations by law. These exceptions are primarily governed by Law No. 2009-974 of August 10, 2009, known as the Mallié Law (I). Furthermore, given that the draft law for growth, activity, and equal economic opportunities intends to revise this system, its provisions should be discussed here (II).
I. Exceptions to the principle of Sunday rest
The French Labor Code provides for several exceptions to the principle of Sunday rest. These exceptions can be classified into four categories.
First, the legislature has established a series of exceptions to the weekly rest period, which in practice can override the principle of Sunday rest. These exceptions correspond to specific cases such as urgent work or seasonal activities. Given the very specific nature of these provisions, their content will not be elaborated upon further. Instead, we must examine the three other types of exceptions, which are distinguished by their methods of obtaining them.
The legislature has thus established permanent legal exceptions (Articles L.3132-12 and -13 of the Labor Code) (A), contractual exceptions (B), and finally, administrative exceptions (C).
A. Permanent exceptions to the law
Permanent exemptions allow certain establishments, whose operation or opening is necessitated by production constraints, business activity, or public needs, to deviate from the Sunday rest rule by assigning weekly rest on a rotating basis (Article L.3132-12 of the French Labor Code). The activities covered by these permanent exemptions are defined by decree (Article R. 3132-5 of the French Labor Code).
Similarly, food retail businesses benefit from a permanent exemption under which weekly rest may be granted on Sundays starting at 1 p.m.
B. Conventional Derogations
In industrial companies, the principle of Sunday rest can be modified by collective agreement. Indeed, a collective agreement, or failing that, authorization from the labor inspector, can allow for continuous work schedules or the use of a relief team.
In both cases, the agreement allows employees to take their weekly rest on a day other than Sunday. It should be noted that when a relief team is used, the pay for work performed on Sunday must be increased by at least 50% compared to the pay that would be due for an equivalent period worked according to the company's normal schedule.
C. Temporary exemptions
Temporary exemptions are granted by the prefect or by the mayor on a permanent or temporary basis.
1. Exemptions granted by the prefect
Under Article L. 3132-20 of the French Labor Code, when it is established that the simultaneous Sunday rest of all employees of an establishment would be detrimental to the public or would compromise the normal operation of that establishment, the rest period may be arranged in various ways, including from Sunday noon to Monday noon or on a rotating basis. The authorization granted to one establishment may be extended to several or all establishments in the same locality carrying out the same activity and serving the same clientele (Article L. 3132-23 of the French Labor Code).
Retail businesses located in municipalities of tourist or spa interest and in tourist areas of exceptional popularity or permanent cultural activity benefit from a separate system and may, by right, grant weekly rest on a rotating basis to all or part of their staff (Article L. 3132-25 of the French Labor Code).
The prefect may also authorize retail establishments that provide goods and services within an exceptional consumer use zone (PUCE), characterized by Sunday shopping habits, the size of the customer base, and its distance from the zone, in urban areas with more than 1,000,000 inhabitants, to grant weekly rest on a rotating basis (Art. L.3132-25-1 of the French Labor Code). These authorizations are limited to a period of five years (Art. L.3132-25-6 of the French Labor Code). The PUCE is
established by the prefect based on a collective agreement or, failing that, on a unilateral decision by the employer adopted by referendum. The collective agreement specifies, in particular, the compensation granted to employees deprived of Sunday rest, as well as the commitments made regarding employment.
Only employees who have given their consent may work under such an authorization.
2. Exceptions granted by the mayor
In retail businesses where the weekly rest day normally falls on Sunday, the mayor or the prefect of Paris may waive this rest day up to five times a year.
In such cases, the employee receives compensation at least equal to double the normal pay for an equivalent period, as well as equivalent compensatory time off.
D. Sanction
If these provisions are not complied with, the labor inspector may petition the court for an interim order to stop the illegal employment of workers in retail and consumer service establishments. The judge may order the establishment to close on Sundays and impose a penalty payment for non-compliance (Article L.3132-31 of the French Labor Code).
Finally, this offence can be punished by the fine provided for fifth class offences (Art. R.3135-2 of the labour code.
II. The proposed amendments in the draft law for growth, activity and equal economic opportunities – Macron Bill
The regulation of Sunday work is the subject of intense debate. Although the draft law for growth, activity and equal economic opportunities, inspired by the conclusions submitted by Jean Paul Bailly to the government, has not yet been definitively adopted, it is worth briefly mentioning the changes made regarding Sunday work, based on the text adopted by the National Assembly.
A. New criteria for delimiting specific zones
1. International tourist areas
The bill amends the zoning established by the Mallié Law. It creates "international tourist zones" (ZTI), delimited by the ministers responsible for labor, tourism, and commerce, which are characterized by:
- their international influence
- the influx of tourists
- the importance of the purchases made by these tourists.
These criteria are intended to be specified by decree.
2. Tourist areas
The bill provides for a common name for tourist, spa or permanent cultural activity municipalities, which should be grouped under the single title of tourist zone (ZT).
3. From the chip to the commercial zone
The exceptional use and consumption zones (PUCE) established by the Mallié Law should be renamed "commercial zones" (ZC) when proof of prior commercial use will not be required.
These zones are characterized by a particularly high level of commercial supply and potential demand, as well as their immediate proximity to a border area (Art. L.3132-25-1 of the French Labor Code).
B. Store opening procedures
According to the draft bill, the delimitation of International Tourist Zones (ZTI) will fall under the jurisdiction of the government after consultation with the mayor. The delimitation of Tourist Zones (ZT) and Commercial Zones (ZC), on the other hand, will be decided by the regional prefect.
In all three zones, Sunday trading will be contingent upon a collective agreement establishing compensation.
The draft bill has increased the number of Sunday openings from 5 to a maximum of 12, with the opening of the last 7 Sundays subject to the approval of the inter-municipal public cooperation body.
The Senate committee's report was submitted on March 27, 2015, and the debate in plenary session began on April 7. The Senate vote on the bill is scheduled for May 6, 2015.
Validation of internships by the old-age insurance scheme
Under Article L. 351-17 of the French Social Security Code, established by Article 28 of Law No. 2014-40 of January 20, 2014, students may request that internship periods be credited to the general social security system, subject to the payment of contributions and up to a limit of two quarters.
The decree of March 11, 2015, applicable to internships beginning after its publication, sets out the procedures and conditions allowing students to request credit for their internships. These conditions notably concern the duration of the internship and the deadline for submitting the request.
1 Decree No. 2015-284 of 11 March 2015 specifying the procedures and conditions for validation of work placements by the general old-age insurance scheme
Case law
Designation of a mandatory supplementary insurance provider
An amendment, extended by decree, to the national collective bargaining agreement for craft businesses in the bakery and pastry-making sector provided for the implementation of a mandatory supplementary health insurance plan for employees covered by this agreement. To this end, Ag2r Prévoyance was designated under Article 13 of this amendment to manage this plan, and Article 14 required all businesses within the scope of the amendment to subscribe to the coverage it stipulated, effective January 1, 2007. The following two court rulings concern the situation of craftspeople who refused to join the plan designated by the agreement. The designated organization then took legal action against them, arguing that membership in this plan was mandatory, in order to recover outstanding contributions.
Soc. February 11, 2015 (No. 14-13.538) FS-PB:
To reject the insurance company's claim, the Court of Appeal relied, firstly, on the Constitutional Council's decision of June 13, 2013, which declared Article L. 912-1 of the Social Security Code unconstitutional and therefore invalidated the disputed amendment, and secondly, on the absence of a contract in force at that time between the insurance company and the company.
The Court of Cassation overturned this ruling. Indeed, the Court held that the Constitutional Council, in its decision of June 13, 2013, stated that the declaration of unconstitutionality of Article L. 912-1 of the Social Security Code did not apply to contracts entered into on that basis, which were in force at the time the decision was published and which bound companies to those governed by the Insurance Code, to institutions falling under Title III of the Social Security Code, and to mutual insurance companies governed by the Mutual Insurance Code. According to the Court of Cassation, the contracts in progress are the acts having the character of collective agreements or conventions which have designated insurance bodies for the purposes of the operation of the pooling mechanisms which the social partners have intended to put in place, or even the contractual acts signed by them with the insurance bodies in order to bind the latter and to specify the stipulations of the collective agreement of the sector and its modalities of effective implementation.
Soc. February 11, 2015 (No. 14-11.409) FS-PB:
In this case, the baker sought to have the clause designating the insurance provider in the collective agreement declared null and void due to the lack of prior competitive bidding.
The Court of Cassation overturned the Court of Appeal's decision, which had made the validity of the designation clause contingent upon prior competitive bidding by the social partners involving several economic operators. In support of its decision, the Court of Cassation specified that the Court of Justice of the European Union (CJEU) had ruled, in a judgment of March 3, 2011 (Ag2r prévoyance v. Beaudout, C-437/09), that mandatory affiliation to a supplementary health insurance scheme for all companies in the sector concerned with a single provider, without the possibility of exemption, was compliant with Article 101 of the Treaty on the Functioning of the European Union (TFEU). In the same ruling, the Court held that, insofar as the activity of managing a supplementary healthcare reimbursement scheme such as the one in question could be classified as economic, Articles 102 and 106 of the Treaty on the Functioning of the European Union (TFEU) did not preclude, in circumstances such as those of the case, the public authorities from granting a pension fund the exclusive right to manage that scheme, without any possibility for companies in the sector concerned to be exempted from joining said scheme. Finally, according to the Court of Cassation, it follows from the provisions of Articles 102 and 106 of the Treaty that they do not impose on the social partners any specific procedures for appointing the manager of a mandatory pension scheme.
Violation of the right to strike
Soc. February 11, 2015 (No. 13-14.607) FS-PB:
Three days after the date announced in a strike notice, an employer, noting that the strike had not begun, posted a notice stating that the notice was no longer valid and that no work stoppage could take place during the notice period. The union that had issued the notice then filed a claim with the High Court seeking an order compelling the employer to remove the notice and to pay damages. The Court of Appeal ruled that the notice infringed upon the right to strike and ordered its removal under penalty of a fine.
The Court of Cassation upheld the Court of Appeal's decision and reiterated that "while, in the public sector, a strike must be preceded by a notice given by a representative union, and while this notice, to be valid, must specify the start and end times of the work stoppage, employees, who alone hold the right to strike, are not obligated to cease work for the entire duration indicated in the notice."
Amendment to the internal regulations
Soc. February 11, 2015 (No. 13-16.457) FS-PB:
A company's internal regulations stipulated that work clothes should not be worn outside the workplace and working hours. The employer subsequently introduced an exception allowing employees to travel to and from work in their work clothes, without submitting this amendment to the Health, Safety and Working Conditions Committee (CHSCT). The Court of Appeal ruled that this amendment was not enforceable against the employee.
The Court of Cassation upheld the Court of Appeal's decision and clarified that, according to Article L. 1321-4 of the French Labor Code, internal regulations can only be amended after the proposed amendment has been submitted to the CHSCT for its opinion on matters within its jurisdiction.
The CHSCT's right to receive damages
Soc. March 3, 2015 (n°13-26.258) FS-PB:
The Court of Cassation clarifies here that the Health, Safety and Working Conditions Committee (CHSCT), "whose mission is to contribute to the protection of the health and safety of the company's employees as well as to the improvement of their working conditions, and which is endowed with legal personality for this purpose, is entitled to sue the employer for compensation for damages caused by the latter's infringement of its prerogatives." The question of whether it could be awarded damages arose since the CHSCT lacks its own budget.
Compensation for violation of an employee's protected status: subject to social security contributions
2nd Civil Chamber, February 12, 2015 (No. 14-10.886) F-PB:
The compensation for violation of protected status, which is not among the compensations not subject to income tax for natural persons exhaustively listed by article 80 duodecies of the general tax code in its applicable version, is subject to social security and unemployment insurance contributions.
Waiver of the non-competition clause
Soc. March 3, 2015 (n°13-20.549) FP-PB:
The Court of Cassation clarifies two points in this ruling. First, it states that "when an employment contract has been terminated by either party exercising their right of unilateral termination, the subsequent signing of a negotiated termination agreement constitutes a joint waiver of the previously terminated agreement."
The Court then adds that "when the employment contract stipulates that the employer may release the employee from the non-compete clause either at any time during the performance of the contract or upon its termination, at the latest in the letter notifying the dismissal or on the day the resignation is received, in the case of a negotiated termination agreement, it is the termination date set by the agreement that determines whether the employer has complied with the contractual notice period."
The Court therefore considers that, in this particular case, by signing a negotiated termination agreement, the parties mutually waived the dismissal previously notified by the employer. Consequently, the employer was legally able to waive the non-compete clause two days before the scheduled date of termination of the contractual relationship.
Employer's obligation to achieve a specific result regarding the protection of the health and safety of the employer
Soc. March 11, 2015 (n°13-18.603) FS-PB:
In this case, an employee who was the victim of psychological and sexual harassment acknowledged the termination of her employment contract and brought a claim before the labor court.
The Court of Appeal upheld the facts of the harassment but dismissed the employee's claim on the grounds that the employer, who had dismissed the perpetrator of the harassment, had taken the necessary measures to protect the employee and therefore had not breached its duty of care.
The Court of Cassation overturned the judgment, ruling that "an employer, bound by a strict liability obligation regarding the health and safety of workers, fails to meet this obligation when an employee is the victim of psychological or sexual harassment in the workplace perpetrated by another employee, even if the employer has taken measures to stop such harassment." It was therefore incumbent upon the court, having established that the employee was a victim of harassment, to determine whether this breach had prevented the continuation of the employment contract.
Professional nature of SMS messages sent or received on the phone provided by the employer
Com. February 10, 2015 (No. 13-14.779) FS-PB:
Accusing a competitor of disrupting its operations by poaching a large number of its employees, a company obtained a court order authorizing an investigation at the competitor's headquarters and on the communication tools provided to its former employees. The Court of Appeal rejected the competitor's request to have this authorization revoked. The competitor then appealed to the Court of Cassation, arguing that the production, as evidence, of text messages sent or received by employees using a mobile phone provided for work purposes was unfair.
The Court of Cassation dismissed the appeal, clarifying that text messages sent or received by an employee using a phone provided by the employer for work purposes are presumed to be professional in nature, meaning the employer has the right to access them without the employee's presence, unless they are marked as personal.
