Due to the COVID 19 pandemic, on April 1, 2020, the Ministry of Labor listed nearly 3.6 million employees placed in partial activity (activité partielle) in France.
They rose to more than 10 million at the end of April 2020.
What are the rights of the employee whose employer would still require work during a period of partial unemployment and what the penalties are.
1) The employer's obligations towards partially active employees
1.1) Mandatory information on the pay slip
With the publication of Decree No. 2020-325 of March 25, 2020, the government announced the introduction of a reinforced obligation to inform the employee about the partial activity system.
Also and now in case of partial activity, the pay slip must specify:
- The number of hours compensated for partial activity;
- The rate applied for the calculation of the compensation paid for partial activity;
- The sums paid to the employee for the period considered. (Article R3243-1 of the Labor Code).
However, the employer has 12 months to comply with the pay slips.
In the meantime, the employer is still required to deliver to the employee concerned by a partial activity measure a document indicating the number of hours compensated, the rates applied and the amounts paid for the period considered (article R5122-17 of the Code of the work in its drafting prior to March 26, 2020), i.e. information identical to that provided for by decree n ° 2020-325 March 25, 2020.
Also, and in reality the content of the information that must be given to the employee remains unchanged but must only be included in the pay slips, within the period of 12 months from the publication of the decree.
1.2) In partial activity, the employee's employment contract is suspended
Then, when the employee is placed in partial activity his employment contract is suspended. (article L.5122-1 of the Labor Code)
Consequently, during these periods, the employee must neither be at his place of work, nor be at the disposal of the employer or comply with his directives, and the employer is prohibited from asking him to work , including teleworking.
This can pose some difficulties in the hypothesis of a single reduction in working hours (unlike a total cessation of work) since the employee is only required to work for non-working hours. This is especially the case when the hours worked are done by telework; the border between non-working hours and working hours may be difficult to establish, particularly due to the workload that will be assigned by the employer.
In this situation, the employer must communicate to the employee precisely his working hours, or his working days or half-days if he is subject to a lump sum agreement in days.
If the work entrusted requires for its completion the exceeding of the scheduled hours, the situation of fraud to the device of the partial activity may be constituted.
2) Sanctions and possible recourse for the employee
2.1) Recourse of the employee who worked during his partial activity
The hours actually worked and the compensated non-working hours are therefore reported month by month on the pay slip or on the separate document.
We recommend that you pay close attention to this information.
Also, if you find that you have worked a greater number of hours than that declared on your pay slip for the hours actually worked, then your employer's fraud with the partial activity device can be characterized.
It is obviously the same if, although placed in full partial activity your employer asked you to work.
In this case, you can:
- Get a salary reminder corresponding to the difference between your salary and the compensation paid for partial activity;
- Obtaining in the event that your employment contract would have been terminated the compensation for concealed work of 6 months' salary provided for in article L.8223-1 of the Labor Code.
Indeed, hidden work is defined in this way by article L.8221-5 of the Labor Code:
“1 ° Or to intentionally evade the completion of the formality provided for in article L. 1221-10, relating to the declaration prior to hiring;
2 ° Either intentionally evade the issue of a pay slip or an equivalent document defined by regulation, or to mention on the pay slip or equivalent document a number of working hours 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 I of the third part;
3 ° Or to intentionally evade declarations relating to wages or social security contributions based on them from the bodies responsible for collecting contributions and social security contributions or from the tax authorities under legal provisions. "
Please note, however, that the intention to commit the employer's concealed work offense must be demonstrated by the employee, and can only result from a simple error.
2.2) Evidence to be kept by the employee in the event of work during his partial activity
The employee is advised to keep all possible traces or writings (email, sms, telephone call, videoconferences to demonstrate that he worked during his partial activity.
This proof can emerge from elements such as emails, sms, telephone calls, invitations to meetings by videoconference, etc.
This proof can also be provided by demonstrating that the tasks entrusted could not reasonably have been carried out within the limits of the timetables set.
2.3) Sanctions incurred by an employer whose employees worked during non-working hours as part of the activity: concealed work, administrative sanctions and fraud
The fact of declaring a number of hours worked lower than the number of actual hours, when it is voluntary, constitutes the concealed crime of work penalized by the following penalties:
- Up to 3 years in prison and a fine of up to 45,000 euros for individuals;
- A fine likely to reach 225,000 euros for legal persons.
(articles L.5124-1 of the Labor Code and 441-6 of the Criminal Code)
Likewise, partial activity fraud can lead to administrative sanctions such as the reimbursement of the partial activity allowance received during the last 12 months (article L.8272-1 and D8272-1 of the Labor Code)
Finally, the crime of scam can also be constituted on the condition of demonstrating the existence of real fraudulent maneuvers, the scam being punished for natural persons, a fine of 375,000 euros and a prison sentence of 5 years, and for legal persons, a fine of 1,875,000 euros (article 313-1 of the Criminal Code).
Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
CHHUM AVOCATS (Paris, Nantes, Lille)
.Paris: 4 rue Bayard 75008 Paris tel: 0142560300
.Nantes: 41, Quai de la Fosse 44000 Nantes tel: 0228442644
.Lille: 25, rue Gounod 59000 Lille tel: 0320135083