French Employment law - Undeclared work: family mutual assistance cannot exclude the qualification of concealed work when the number of undeclared work hours is excessive (Cass. Crim, May 26th, 2021, n ° 20-85118)

By a judgment of May 26th, 2021, the criminal chamber of the Court of Cassation retains the existence of concealed work when the employee who has worked more hours than foreseen in her employment contract without them being declared, is the employer's wife, with the visa of article L8221-5.

Article L8221-5 provides in particular "that work concealed by concealment of salaried employment is deemed to be the fact that any employer mentions on the pay slip or equivalent document a number of hours of work less than that actually accomplished," if this mention does not result from an agreement or a collective agreement for the organization of working time concluded in application of Title II of Book 1 of Part Three ”.

1) Facts

URSSAF carried out a check on a family bakery on October 3rd, 2017.

It was revealed during this check that the employer's wife had an employment contract providing only 30 hours per week.

However, the employee actually worked more than 50 hours per week, overtime not being declared.

URSSAF therefore took the employer to the criminal court for undeclared work.

Sentenced by the criminal court, the employer appealed.

By a decision rendered on June 30, 2020, the Aix-en-Provence Court of Appeal acquitted the employer of the charge of carrying out work concealed by the employment of his wife on the grounds that family mutual assistance is an obstacle to the qualification of concealed work since "the person lends his assistance without contractual obligation and on a one-off, occasional, non-lasting basis and without compensation of any kind whatsoever, outside of any legal subjection to the person who solicits "for" the interest of the good functioning of a small family business ".

Consequently, URSAFF appeals on points of law on the basis of Article L8221-5 of the Labor Code.

2) URSSAF argumentation

URSAFF complains that the appeal court ruling rejected the qualification of undeclared work.

On the contrary, URSAFF maintains the existence of concealed work since the employer's wife did not have the status of associated spouse and since the number of hours worked was manifestly excessive in view of the stipulations of the contract. of work and consequently exclusive of family mutual assistance as defined by case law.

The URSAFF also rules out the means put forward by the employer of volunteering which is "necessarily excluded when the position held is essential to the operation of the company", even though the employee does not claim payment for her overtime worked.

3) Is the qualification of concealed work retained when the employer mentions on the payslip of his wife that he employs, a number of hours of work less than that actually accomplished? YES, answers the Court of Cassation.

The Court of Cassation replied in the affirmative, and quashed and annulled the lenient decision rendered by the Court of Appeal invoking family assistance.

In accordance with article L8221-5, the Court of Cassation severely judges that “the status of employee, by virtue of an employment contract which places the person concerned in a relationship of subordination with regard to his employer, excludes that the possibility of continuing, as part of family mutual assistance and without establishing the corresponding declarations to social organizations, the same activity beyond the contractually due hours, even on a voluntary basis, can be recognized ”.

While family mutual aid had previously had rather vague relations with hidden work, the Court of Cassation distinguished them very clearly: family mutual aid must be content to be occasional, spontaneous and unpaid, which is not was not the case in this case because the employer's wife worked permanently (from Monday to Sunday), against remuneration provided for in her employment contract.

Source : site de la Cour de cassation

c.cass., 26 mai 2021, n°20-85.118


Frédéric CHHUM, Avocat à la Cour et Membre du Conseil de l’ordre des avocats de Paris (mandat 2019-2021)
CHHUM AVOCATS (Paris, Nantes, Lille)
e-mail : chhum@chhum-avocats.com
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