Feb
14
French Labour law: Control of the unemployed workers (chômeurs) : tougher sanctions that applies since January 1st, 2019.

The Decree n° 2018-1335 of December 28th, 2018 on the rights and obligations of the unemployed workers and the transfer of job search follow-up is effective from January 1st, 2019.

This decree extends the obligation to perform positive and repeated acts with a view to finding a job, creating or taking over a business, at the development phase of a company created or taken over.

1) Definition of the Reasonable Offer of Employment (offre raisonnable d’emploi) (ORE)

The unemployed worker must define its personalized employment access project with their Pôle Emploi advisor (L.5411-6 French labour code).

The nature and characteristics of the job or job sought, the preferred geographical area and the expected salary are the components of the reasonable offer of employment, as mentioned in the personalized project of access to employment (Article L. 5411-6-2 of French labour code).

The personalized project of access to employment is updated periodically. During this update, the elements constituting the reasonable offer of employment are revised, in particular to increase the prospects of returning to work (Article L. 5411-6-3 French labour code).

The reasonable job offer defines the job offer that the unemployed worker is forced to accept. The refusal of a reasonable offer of employment twice results in a cancellation on the lists of the unemployed workers.

The decree of December 28th, 2018 removes the concept of previously received salary (repeal of R. 5411-15 French labour code), which means that an unemployed worker (chômeur) may be forced to accept a job, despite a salary level much lower than the salary previously received.

Criteria of the reasonable offer of employment.

The chart below summaries the reasonable offer of employment plan before and after January 1st, 2019.

Before January 1st  2019

 

(L5411-6-3 labour code and R. 5411-15 labour code

previous version)

 

From January 1st, 2019

(Amendment to L5411-6-3 labour code and repeal of R. 5411-15 labour code)

Salary :

- Registration for 3 months: 95% of the salary previously received;

- Registration for 6 months: 85% of the salary previously received;

- Registration for 1 year: up to the replacement income.

Travel time:

- Maximum duration : 1h ;

- Maximum distance : 30km.

 

Deletion of indicators:

 

- Removal of the reference to the salary previously received;

 

- Removed reference to time and distance indicators.

2) New scales of sanctions in case of non-compliance by the unemployed worker (Decree of  December 28th, 2018).

2.1) Cancellation and removal of replacement income (revenue de remplacement)

2.1.1) Unchanged reasons for deletion (radiation) from Pôle Emploi

The 8 grounds for cancellation of the unemployed worker remain unchanged.

Radiation can occur for several reasons:

  • The unemployed worker cannot justify the performance of positive and repeated acts with a view to finding a job, creating, taking over or developing a business;
  • The job-seeker without legitimate reason, refuses twice a reasonable offer of employment;
  • The job seeker without legitimate reason: Refuses to develop or update the personalized project of access to employment;

* Is absent from a training action or abandons it;

  • Is absent at an appointment with the public employment services; 
  • Refuses to undergo a medical examination to check its fitness for work or certain types of employment;
  • Refuses to follow or abandons an action of help to the search for a professional activity;
  • Cannot justify the reality of the steps mentioned in II of Article L. 5426-1-2 French labour code (L. 5412-1 French labour code).

2.1.2) Tougher penalties for breaches of the unemployed worker 's obligations.

Before the Decree of  December 28th, 2018, in case of breach of one of these obligations, the unemployed worker was deprived of a percentage of its replacement income (reduction of the amount of 20% for the first breach, 50% for the second).

From now on the sanction is the pure and simple suppression of the income.

The revision of the scale of the sanctions is determined according to the nature of the deficiencies and their repetitions.

This new sanction grid is defined in Article R. 5426-3 labour code.

Types of breaches -

 

Number of breaches -

 

Sanction

Sanction’s duration -

 

  • Absence to an appointment Pôle Emploi without legitimate reason

(Absence à un rendez-vous Pôle Emploi sans motif légitime)

 

1st breach

 

 

Radiation

 

1 month

 

2nd breach  

Radiation and temporary withdrawal of replacement income

 

(Radiation et suppression temporaire du revenu de remplacement)

2 months

 

3rd breach

 Radiation and temporary withdrawal of replacement income

 

(Radiation et suppression temporaire du revenu de remplacement)

4 months

 

  • Absence of justification of positive acts to find a new job ;
  • Refusal twice, without a legitimate reason of an reasonnable offer of employment ;
  • Refusal, without legitimate reason, to do or to update the “projet personnalisé d’accès à l’emploi” ;
  • Absence or give up, without a legitimate reason of a training ;
  • Refusal to accept of a work medical assessment;
  • Refusal, to follow one action of « aide à la recherche d’une activité professionnelle » ;

 

 

1st breach  

Radiation and temporary withdrawal of replacement income

1 month

 

2nd breach

Radiation and temporary withdrawal of replacement income

2 months

 

3rd breach

Radiation and temporary withdrawal of replacement income

4 months

 

  • Fraud or false declaration

 

1st breach

 

Radiation

 

Radiation and definitive withdrawal of replacement income

 

Between 6 et 12 months

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* Except for an undeclared activity of a very short duration, the first breach will be sanctioned by a suppression of replacement income for a period of 2 to 6 months, then definitively in case of repetition (R. 5426- 3 ° French labour code).

2.2) Administrative penalty.

Without prejudice to actions for recovery of unduly paid benefits and criminal prosecution, the regional director of Pôle Emploi and no longer the prefect may pronounce, in certain cases, an administrative penalty against the offending job-seeker when the inaccuracy or the incompleteness of the statements made are deliberate, or where failure to report a change in circumstances has resulted in undue payments.

The commission initially set up to rule on administrative penalties was abolished (R. 5426-15 French labour code).

The unemployed worker must now appeal to the regional director of Pôle Emploi (R. 5426-17-1 French labour code). This appeal is not suspensive.

3) Harmonization of the adversarial procedure in case of cancellation.

Following a decision to strike out or cancel the replacement income, the adversarial procedure was harmonized and clarified.

Prior to the reform, the prefect or the DIRECCTE (Regional directorates of business, competition, consumption, labour and employment) were competent to follow up on an unemployed worker 's failure

Since 1st January 2019, the regional director of Pôle Emploi informs the unemployed worker of his decision to cancel or cancel replacement income (R. 5426-8 French labour code and R. 5412-7 French labour code).

The person concerned has 10 days following the information to present his written observations, or if he wishes to be heard, as of the date of hearing.

The final decision must be delivered within 15 days of the expiry of the 10-day period or from the date of the hearing.

This decision must indicate the duration of the deletion and mention the ways and time limits for appeal.

The unemployed worker can make an administrative appeal to the director of his agency Pôle emploi.

If he does not obtain satisfaction, the unemployed worker may appeal to the administrative court.

Decree n° 2018-1335 of December 28th, 2018 on the rights and obligations of job-seekers and the transfer of the follow-up of the job search.

https://www.legifrance.gouv.fr/eli/decret/2018/12/28/MTRD1831534D/jo/texte

Frédéric CHHUM, Avocats à la Cour (Paris et Nantes)

Membre du Conseil de l’ordre des avocats de Paris

.Paris : 4 rue Bayard 75008 Paris - Tel: 01 42 56 03 00 ou 01 42 89 24 48
.Nantes : 41, Quai de la Fosse 44000 Nantes -  Tel: 02 28 44 26 44

E-mail : chhum@chhum-avocats.com

Blog: www.chhum-avocats.fr

http://twitter.com/#!/fchhum

 

 

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