Par frederic.chhum le 09/09/18

To read the Articles, please click on the link after the Articles.

Bonne lecture !

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CHHUM AVOCATS (Paris, Nantes) assists and defends employees, intermittent workers  in the entertainment business (intermittents du spectacle), artists, whistleblowers (lanceurs d’alerte), journalists, pigistes, executives (cadres), senior executives (cadres Dirigeants).

1)  A press correspondant is journalist if he/she receives fix remuneration and obtain from its work the essential of its ressources

 

https://blogavocat.fr/space/frederic.chhum/content/droit-des-journalistes-le-correspondant-de-presse-est-journaliste-s%E2%80%99il-re%C3%A7oit-des-appointements-fixes-et-tire-de-son-activit%C3%A9-exerc%C3%A9e-%C3%A0-titre-doccupation-principale-et-r%C3%A9guli%C3%A8re-lessentiel-de-ses-ressources-c.-cass.-30-mai

2) Transformation of short term contact (CDD) into permanent contract (CDI) : 3  interesting case law in 2018

En savoir plus sur https://www.village-justice.com/articles/requalification-cdd-cdi-jurisprudences-interessantes-cour-cassation-mai-2018,28598.html#Zh0xJgGp384z45Ig.99

3)      The Journalist dismissal indemnity is only applicable to journalists employee by “journaux and periodiques” companies excluding press agency journalists?

https://blogavocat.fr/space/frederic.chhum/content/droit-des-journalistes-le-b%C3%A9n%C3%A9fice-de-lindemnit%C3%A9-de-licenciement-aux-seuls-journalistes-salari%C3%A9s-des-entreprises-de-journaux-et-p%C3%A9riodiques-%C3%A0-lexclusion-des-journalistes-des-agences-de-presse-est-il-constitutionnel-c.-cass.-9

4)     In the absence of written contact, the « pigiste » journalist is on a permanent contact (CDI)

. https://www.village-justice.com/articles/droit-des-journalistes-absence-contrat-travail-ecrit-journaliste-pigiste-est,28409.html

5)  Professional journalists : exclusive competence of the Commission Arbitrale to determine the indemnity due in case of dismissal

https://www.village-justice.com/articles/journalistes-professionnels-commission-arbitrale-est-seule-competente-pour,28067.html

6) Canal + journalist’s transformation of short term contract (CDD) into a permanent contract (CDI) : such transformation takes place on the 1st irregular CDD even there was a 5 year break

https://blogavocat.fr/space/frederic.chhum/content/requalification-de-cdd-en-cdi-d%E2%80%99un-journaliste-de-canal-la-requalification-prend-effet-au-1er-cdd-irr%C3%A9gulier-m%C3%AAme-s%E2%80%99il-y-eu-une-interruption-de-5-ans-c.-cass.-31012018-n%C2%B016-19551_

7) Télématin (France Télévisions) journalist’s integration on a full time permanent job after 20 years' of short term contacts (CDD)  !

(Conseil de prud’hommes Paris, Départage, 1er juin 2017,

8) Union Discrimination : France Télévisions must communicate the career progression (évolution de carrière) of its 19 collegues

https://www.village-justice.com/articles/france-televisions-peut-elle-valablement-licencier-animateur-tex,26788.html

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

. 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

Par frederic.chhum le 11/03/18

The Macron ordinances of 22 September 2017 and the decree of 25 September 2017 (No. 2017-1398) on the revalorization of the dismissal indemnity have changed the situation regarding the conventional termination indemnity.

Since its creation in 2008, the conventional termination (rupture conventionnelle) has been phenomenally successful.

In 2017, nearly 421,000 conventional terminations were approved.

In practice, the conventional termination has become so widespread that, from now on, employers are almost systematically attempting to negotiate a conventional termination before triggering a dismissal procedure.

However, in this negotiation, employer and employees are not on an equal footing.

It is indeed difficult for an employee to know what he is entitled to and how far he can go in the negotiation of his conventional termination. Especially since in practice, in 50% of cases, the conventional termination is actually a disguised dismissal.

Employees must therefore know how to negotiate their departure.

Of course, in all cases, it is strongly recommended to be assisted by a lawyer to guarantee the preservation of your rights.

1) What is the minimum amount my employer has to pay me?

At a minimum, your employer must pay you a specific termination indemnity equivalent to the legal indemnity that would be due in case of dismissal, or the conventional dismissal indemnity if it is more favourable.

NB: The conventional dismissal indemnity is however not applicable and only the legal indemnity is due 1) in the companies that do not fall within the scope of the ANI (the Inter-professional National Agreement) of 11 January 2008; 2) in companies that have concluded a collective agreement expressly providing for the payment of the sole legal indemnity in the event of a contractual Termination.

Example: For employees in the publishing sector whose employer is not a member of either Medef (Movement of French Enterprises), CGPME (Confederation of Small and Medium-sized Enterprises) or UPA (Artisanal professional Union), the minimum conventional termination indemnity is the legal indemnity and not the Conventional one (CA Nancy, Ch. Soc., August 30, 2017, n ° 16/02668).

For the conventional dismissal indemnity, reference should be made to the provisions of the collective agreement applicable in the company.

For the legal dismissal indemnity, it is due as soon as the employee has 8 months of seniority with his employer.

It amounts to 1/4 of salary per year of seniority up to 10 years and 1/3 beyond.

The salary to be taken into consideration for the calculation is, according to the most advantageous formula, one twelfth of your gross remuneration of the last twelve months preceding the dismissal, or one-third of the last three months. (C. Art R. 1234-4)

This amount is, however, only a minimum and it is therefore perfectly possible to negotiate a conventional supra-legal termination indemnity.

NB: You will also need to get the balance of your paid leaves and your RTT (working Time Reduction) if applicable.

2) How much can I negotiate a "supra legal" indemnity?

To negotiate at best, it is necessary to "benchmark" according to the amount that you could obtain in the event of abusive / without real and serious cause dismissal before a Labour Court or a Court of Appeal.

Thus, the conventional termination indemnity to be negotiated may amount to the sum of the following amounts:

  • Compensation in lieu of notice: the duration of your notice period is provided for in the collective agreement applicable in your company (generally 1 to 3 months depending on whether you are an employee or an executive) or, failing that, by article L. 1234- 1 of the French Labour code (1 to 2 months depending on your seniority);
  • Subsequent paid leaves, equal to 10% of the gross amount of your compensation in lieu of notice;
  • The conventional dismissal indemnity or, failing that, the legal conventional indemnity;
  • A "supra-legal" indemnity calculated on the basis of the maximum indemnity provided for in the indemnity scale (see our previous brief: https://www.village-justice.com/articles/orders -macron-changing--for-employees-with-cap-on, 25765.html)

• If you have less than 1 year of seniority: the equivalent of 1 month's salary;

• If you have 1 year of seniority: the equivalent of 2 months’ salary;

• If you have 2 years of seniority: the equivalent of 3.5 months’ salary;

• If you have 3 years of seniority: the equivalent of 4 months’ salary;

• If you have 4 years of seniority: the equivalent of 5 months’ salary;

• If you have 5 years of seniority: the equivalent of 6 months’ salary;

• If you have 6 years of seniority: the equivalent of 7 months’ salary;

• If you have 7 to 8 years of seniority: the equivalent of 8 months’ salary;

• If you have 9 years of seniority: the equivalent of 9 months’ salary;

• If you have 10 years of seniority: the equivalent of 10 months’ salary;

• If you have 11 years of seniority: the equivalent of 10.5 months’ salary;

• If you have 12 years of seniority: the equivalent of 11 months’ salary;

• If you have 13 years of seniority: the equivalent of 11.5 months’ salary;

• If you have 14 years of seniority: the equivalent of 12 months’ salary;

• If you have 15 years of seniority: the equivalent of 13 months’ salary;

• If you have 16 years of seniority: the equivalent of 13.5 months’ salary;

• If you have 17 years of seniority: the equivalent of 14 months’ salary;

• If you have 18 years of seniority: the equivalent of 14.5 months’ salary;

• If you have 19 years of seniority: the equivalent of 15 months’ salary;

• If you have 20 years of seniority: the equivalent of 15.5 months’ salary;

• If you have 21 years of seniority: the equivalent of 16 months’ salary;

• If you have 22 years of seniority: the equivalent of 16.5 months’ salary;

• If you have 23 years of seniority: the equivalent of 17 months’ salary;

• If you have 24 years of service: the equivalent of 17.5 months’ salary;

• If you have 25 years of service: the equivalent of 18 months’ salary;

• If you have 26 years of seniority: the equivalent of 18.5 months’ salary;

• If you have 27 years of seniority: the equivalent of 19 months’ salary;

• If you have 28 years of seniority: the equivalent of 19.5 months’ salary;

• If you have 29 years of seniority or more: the equivalent of 20 months’ salary.

  • What if you are being harassed?

The existence of a situation of moral harassment (harcèlement moral) makes it possible to remove the indemnities granted in case of unfair dismissal / without real and serious cause before the Labour Court.

In such a case, the employee is entitled to claim compensation that cannot be less than 6 months' salary, regardless of his seniority and the size of the company (C. Art. 1235-3-1)

Thus, this may be a good argument for increasing the amount of the supra legal indemnity in the context of negotiating a conventional termination.

However, you must be careful because this strategy can also be the cause of a blocking of the negotiation.

Indeed, an employer can quickly become suspicious when the employee refers to the term harassment during the bargaining process because, in such a case, the conventional termination agreement is void. (See in particular Cass Soc., June 09, 2015: No. 14-101.92)

In practice, the conventional break is often accompanied by the signing of a transaction that ensures the employer against any risk of litigation that may arise.

3) What is the tax and social regime of the conventional termination indemnity?

The tax and social system of the indemnity paid in the case of a conventional termination agreement differs greatly depending on whether or not the employee has reached the retirement age.

Besides, case of It can be noted that this distinction was not applicable to the indemnity grated in a Collective Mutual Agreed Termination (Rupture conventionelle collective), which always benefits from a preferential regime regardless of whether or not the employee has reached the retirement age.

3.1) Hypothesis 1: General case:

Income tax: The conventional termination indemnity is exempt from tax up to the highest of the following amounts:

- The amount of the legal or contractual dismissal indemnity;

- Twice the amount of the gross annual remuneration received during the calendar year preceding; or the termination of the employment contract;

- 50% of the amount of the indemnity paid.

In all cases, the fraction of the indemnity that exceeds 6 times the annual ceiling of social security (238,392 euros in 2018) is subject to income tax. (C. General Taxes Article 80 Duodecies)

Social security contributions: The fraction of the conventional indemnity exempt from income tax is also exempt from social contributions but only within the limit of 2 times the annual social security ceiling (79,464 euros in 2018).

However, if the total amount of compensation exceeds 10 times the annual ceiling of social security (397,320 euros in 2018), it will be subject to social security contributions from the first euro. (Social Security Act, art L. 242-1, 1. 6 °)

CSG-CRDS: The CSG-CRDS will apply only on the fraction of the indemnity exceeding the amount of the legal or conventional dismissal indemnity. It will apply from the first euro if the total amount of compensation paid exceeds 10 times the annual ceiling of social security (238.392 euros in 2018).

3.2) Hypothesis 2: You have reached the legal retirement age:

Income Tax: The conventional termination indemnity is fully subject to income tax. (Social Security Act, art L. 242-1, 1. 6 °)

Social security contributions: The conventional termination indemnity is fully subject to social security contributions.

CSG-CRDS: The CSG-CRDS applies on the full amount of the conventional termination indemnity.

In this case, it is preferable to "come back" to a dismissal / transaction that only allows to benefit from a tax and social security contributions exemption according to article 80 duodecies of the General Tax Code.

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

. 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

 

 

Par frederic.chhum le 26/12/17

Senior executives (cadres dirigeants), who are excluded from the provisions of French Labour Code relating to working time, rest and holidays, constitute a very restricted category of employees.

Article L. 3111-2 of French Labour Code defines senior executives (cadres dirigeants) as executives who are assigned responsibilities whose importance implies a great independence in the organization of their schedule (1), who are authorized to take decisions in a largely autonomous way (2) and who receive remuneration at the highest levels of the remuneration systems in their company (3).

The Court of Cassation (Cour de cassation) specifies, by established case-law, that the status of senior executive (cadre dirigeant) supposes the participation of the employee in the management of the company.

Above all, it constantly ensures that this notion receives a restrictive application.

However, the consequences in the event of disqualification can be very costly for thecompany: the employee can then request the payment of all overtime if he/she can justify within the limit of three years.

2016 and the first half of 2017 have resulted in several judgments concerning senior executive status.

The purpose of this article is to provide a non-exhaustive overview of the judgments on this subject and the lessons to be drawn from them.

1) Criteria used by the Court of Cassation to admit / refuse the status of senior executive (cadre dirigeant)

1.1) Cass. Soc. June 22nd 2016, n°14-29.246: the requirement to participate in the management of the company is not an independent criterion that would replace legal criteria

In a resounding judgment of 22nd June 2016 (n°14-29.246), to which the Court of Cassation (Cour de cassation) intended to give the widest publicity, the Court of Cassation affirmed that the judges of the merits (The french labour tribunal and Court of appeal) faced with a question concerning the validity of senior executives status, first had to check that the legal criteria were met and only then draw the conclusion that the employee actually participates in the management of the company.

This solution was then confirmed by a judgment of December 1st 2016 (n °15-24.695).

However, the requirement to participate in the company has not been abandoned by the Court of Cassation (Cour de cassation) which continues to apply (see in particular Cass Soc July 6th 2016, n°15-10.987).

It is now simply stated that this requirement does not constitute an independent criterion capable of replacing the three criteria of Article L. 3111-2 of French Labour Code.

This is a finding that must necessarily be made by the judges of the merits but only after having previously found the meeting of the legal criteria.

In no case can they be content to justify the application of the status of senior executive.

1.2) Cass. Soc. May 11th 2017, n° 15-27.118: the fact of intervening only at a decentralized level of the company does not prevent the recognition of the status of senior executive (cadre dirigeant)

In a decision of May 11th 2017 (n°15-27118), the Court of cassation (Cour de cassation) for the first time to our knowledge, expressly stated that the exercise of its functions at a decentralized level was not incompatible with the status of senior executive (cadre dirigeant).

He was in this case a Sector Manager (Chef de secteur) of a construction company.

He was responsible for two construction supervisors, a project manager and four site managers, who were in charge of the commercial and technical and financial management of the yards in his geographical area.

He had the power to conclude all contracts for public works or private works of an amount less than or equal to one million euros, subcontract all or part of these markets and generally represent the company both with regard to the owners and contractors that with regard to third parties, he had delegated powers to recruit and dismiss workers, to apply disciplinary sanctions, to take all necessary measures to comply with the regulations on social law, the awarding and execution of public or private contracts, regulations on hygiene and safety, the environment and the absence of nuisance.

Lastly, he participated in the management committees under the chairmanship of the regional director and out of a workforce of more than one thousand and one of twelve employees whose gross annual salary was between 50,000 and 100,000 euros, five others employees only receiving higher remuneration.

The Court of Cassation (Cour de cassation) held that "the functions of the person concerned within the company, even at a decentralized level, were those of a senior executive (cadre dirigeant) to whom the rules relating to hours of work were not applicable" (Cass Soc.May 11th 2017, n°15-27118).

In doing so, the Court of Cassation (Cour de cassation) strongly rejected the argument that the exercise of limited functions at a decentralized level of the company would be incompatible with the status of senior executive.

2) 7 concrete situations in which the status of senior executive (cadre dirigeant) has been recognized or refused by the Court of Cassation (Cour de cassation)

The Court of Cassation (Cour de cassation) was also asked to rule on several cases in which the status of senior executive (cadre dirigeant) was challenged by the employee.

2.1) Cases in which the status of senior executive (cadre dirigeant) has been admitted by the Court of Cassation (Cour de cassation)

The Court of Cassation (Cour de cassation), for example, recognized the status of senior executive (cadre dirigeant) with regard to:

• The Deputy Chief Executive Officer (Directeur Général délégué) of a catering company, member of the management committee, independent in the organization of his schedule, benefiting from one of the highest salaries of the company and empowered to make decisions in a widely autonomous.

In this respect, the Court states that it does not matter whether the employee's payslips mention 169 hours per month (Cass Soc July 6th 2016, n°15-10987);

• The Managing Director of a Russian company of the German Group GmbH whose remuneration was among the three highest in the group, whose job description showed that he had independence in the organization of his work and was entitled to as a proxyholder, to make decisions in a largely autonomous manner (Cass Soc Sept 28th 2016, n°15-10736);

• Auchan group store manager chaired the store management committee, which chaired the establishment committee and the CHSCT, and enjoyed a very wide delegation of authority in all sectors, including the management of the conclusion, execution and termination of employment contracts, participated in the definition of company policy and sat on the supervisory board, could incur expenses alone up to a limit of 100 000 euros and incur expenses up to 200 000 euros in agreement with the management controller, had complete independence in the organization of his schedule and received the highest remuneration of the store (Cass Soc March 8th 2017, n°15-24117);

2.2) Cases in which the status of senior executive (cadre dirigeant) has been refused by the Court of Cassation (Cour de cassation)

On the other hand, the Court of Cassation (Cour de cassation) invalidated the status of senior executive with regard to:

• The Director of a car dealership for which it was not established that he had any of the most important remuneration of the company or that he participated in the management of it (Cass. Jan. 27th, 2016, n°13-26251);

• The head of the store department of a furniture brand on the sole ground that it did not participate in the company's strategy or in the management of the company (Cass Soc June 15th 2016, n ° 15- 12894);

• The director of an educational institution whose job description provided that he was responsible for ensuring the implementation of the establishment project approved by the association on the grounds that he did not have sufficient autonomy (Cass Soc Jan 11th 2017, n°14-21548).

2.3) Court of Appeal of Paris (Cour d’appel de Paris), May 23rd, 2017, n ° 14/10516: Refusal of the status of senior executive, reminder of overtime and judicial termination of the employment contract

In a judgment of May 23rd, 2017 (Court of Appeal Paris 6-3, n °14/10516, there is a “pourvoi” against this decision), the Court of Appeal of Paris refused the status of senior executive to a senior Stylist of an international luxury group.

In declaring the nullity of his executive status, the Court of Appeal (Cour d’appel) held in particular that:

• the stylist performed her duties according to the instructions of the artistic director and of the Studio coordinator and her other superiors and did not have the capacity to make autonomous decisions;

• the employer did not respond to the employee's summons to communicate the pay slips required to justify the remuneration actually received by other employees;

• the employee requested leave authorizations, her schedule of meetings was set taking into account the availability of the director general or other collaborators, her travel expenses were subject to prior authorization so that she would not did not enjoy a great deal of independence in organizing his schedule and his work.

As a result, the stylist obtained a substantial overtime reminder as well as damages for non-compliance with compensatory rest and damages for breach of weekly rest.

Finally, in addition to the moral harassment (harcèlement moral) of which the Stylist was a victim, the Court of Appeal (Cour d’appel) held that her status as a senior executive (cadre dirigeant) was null and void, as well as the failure to pay overtime in very significant proportions to consider that the judicial termination of the wrongs exclusivity of the employer was justified.

3) The indemnity to repair the loss of opportunity to raise options is taxable as a salary (Conseil d'Etat, May 22nd, 2017, N°395440)

In a judgment of May 22nd, 2017 (n°395440), the Council of State (Conseil d' Etat) ruled on the tax system of the compensation to repair the damage resulting from the loss of the possibility of raising stock options.

The Council of State (Conseil d'Etat) stated that the compensation for the loss of the right to exercise the stock options was not intended to make good the damage resulting from the dismissal without any real and serious cause.

Accordingly, this allowance is taxable as a salary and "as would have been the income from the exercise of the option if the executive had exercised its stock options" on the basis of Articles 79 and 82 of the French General Tax Code.

Frédéric CHHUM Avocat à la Cour (Paris et Nantes)

. 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

 

 

Par frederic.chhum le 29/09/17

1) The new amount of the legal severance compensation (“indemnité légale de licenciement”) 

The legal severance compensation shall not be less than the following amounts:

A quarter of a month's salary per year of seniority up to ten years;
One third of a month's salary per year of seniority from ten years.  (Art. R. 1234-2 of the French Labour Code)

Please note that if a collective agreement provides for a more favorable severance pay, this applies instead of the legal severance compensation.

For example, the Syntec collective agreement and the advertising collective bargaining agreement provide for a more favorable contractual indemnity of 1/3 of a month's salary per year of seniority.

For journalists, the contractual severance indemnity is even one month's salary per year of seniority.

60% of employees would be covered by a sectoral collective bargaining agreement (“convention collective de branche”) providing for a more favorable contractual severance indemnity than the legal severance compensation of the French Labor Code.

2)Salary to be taken into account in order to calculate the legal severance compensation 
The decree amended Article R. 1234-4 1 ° of the French Labor Code and now specifies that : the salary to be taken into account, for the calculation of the severance pay, is the most advantageous calculation for the employee:

1 ° The monthly average of the last twelve months before the dismissal, or where the seniority of the employee is less than twelve months, the monthly average of the remuneration for all the months before the dismissal;

2 ° One third of the last three months. In this case, any annual or exceptional bonus paid to the employee during this period shall be taken into account only up to an amount calculated proportionately.

3) The legal severance compensation is calculated prorata temporis in case of partial year

Article R. 1234-1 of the Labor Code specifies that "In the case of an partial year, the indemnity shall be calculated in proportion to the number of full months".

4) The decree applies from September, 27th 2017

The decree is applicable to dismissal, enforced retirements pronounced and to mutual agreed termination (“rupture conventionnelle”) concluded after its publication.

In summary,

An employee who holds an open-ended contract of employment, who was dismissed after eight months of uninterrupted period of employment with the same employer, is entitled to a legal severance compensation, except in the case of serious misconduct.

The rate and method of calculation of this compensation are fixed by decree in Council of State (“Conseil d'Etat”).

This decree re-evaluates this compensation and adjusts the calculation of the reference salary when the period of employment of the employee in the company is less than twelve months.

This provision comes into force on September 27th, 2017.

Frédéric CHHUM Avocat à la Cour (Paris et Nantes)

. 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

 

 

 

 

 

 

 

 

Par frederic.chhum le 27/03/17

This a revolution. The law of December 9th 2016 sets forth that all the director’s compensation elements must be submitted to the shareholder’s vote.

The decree of March 16th, 2017  determine the conditions of such scheme.

From March 18th, 2017, the General Meeting of listed company (sociétés anonymes) must approve the Director’s compensation

Formerly, the General Meeting had only to give an advisory opinion in this matter.

1) Directors (dirigeants) concerned

This measure applies to listed stock companies (sociétés anonymes cotées).

This applies to:

  • The Chairman (présidents), General Managers (directeurs généraux) et Vice General Manager (directeurs généraux délégués) of listed stock companies with board of Directors (SA  à conseil d’administration) (C. com., art. L. 225-37-2),
  • The members of the executive board (membres du directoire), the unique General Manager and the members of supervisory board (conseil de surveillance) in French société anonyme governed by an executive board and a supervisory board (SA  à conseil de surveillance) (C. com., art. L. 225-82-2).

2) Approval of Director’s compensation by shareholder’s vote

The General Meeting must approve on Director’s remuneration at least once a year through a resolution.

The shareholder’s approval will be necessary for any modification of element of compensation and for renewal of the mandate (mandat) of a Director.

3) Elements of compensation that must be approved : all fixed, variable or exceptional compensation elements

The resolution adopted must define the principles and determining, distributing and awarding criteria’s of such compensation element that can be granted to Directors (Dirigeants).

The decree defines the fix, variable and exceptional element of the compensation and all benefit in kind.

In this respect, the decree indicates Directors’ elements of compensation and benefit in kind mentioned in Article L. 225-37-2, and in particular:
« 1° the attendance fees (jetons de présence) ;
« 2° the fixed annual compensation;
« 3° the variable annual compensation;
« 4° the variable pluri annual compensation ;
« 5° the stock options;
« 6° the free shares;
« 7° the exceptional compensation;
« 8° the golden hello;
« 9° the commitments indicated on article L. 225-42-1 (alinéa, 1 and alinéa 6);
« 10° the compensation element and any benefit indicated on Article L. 225-37-2 (alinéa1);
« 11° all remuneration element granted to the mandate (mandate);
« 12° all benefit in kind.
Decree n°2017-340 March 16, 2017 - Légifrance

https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000034203291&dateTexte=&categorieLien=id

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

. 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

 

 

Par frederic.chhum le 18/03/17

On March 17th, 2017, CHHUM AVOCATS hold a labour law breakfast on how to implement the right to disconnect (droit à la déconnexion) under French labour law?

You can upload below the Powerpoint Droit à la déconnexion comment le mettre en œuvre ?

This Powerpoint was written by Marilou OLLIVIER, trainee avocate (HEDAC) at CHHUM AVOCATS (Paris, Nantes).

Do not hesitate to contact us for any question.

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

. 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

 

Par frederic.chhum le 15/12/14

The law n°2008-596 of 25 June 2008 relating to modernization of the labor market, has created a new form of termination of employment contract under French law: the mutually agreed termination/Rupture conventionnelle.

It allows the employer and employee to terminate the employment contract by a mutual agreement.

However, employer and employee are not equal because employees are not prepared for the negotiation before signing the mutual agreement. That is why it is better to be advised by a French Avocat, who will help and give you advices before concluding your rupture conventionnelle.

As an employee, you should know your rights we will see below.

1) When an employer does not have any motivation to terminate the contract, company used to conclude a mutual agreement

Most of the times, companies try to conclude a mutual agreement instead of performing a dismissal. Sometimes, it happens frequently when an employee has many years of service in the company.

2) Willing consent of all parties

The mutually agreed termination supposed to be based on the willing consent of all parties (article L.1237-11 of French Labor Code).

One party (employer most of the times) cannot impose the mutually agreed termination on the other party (employees).

Indeed, it is important that the employee envisages the termination of her employment contract by mutual consent.

In other words, it should be a genuine mutual agreement between parties to terminate the employment contract.

In a recent case law, judges have decided that the consent was vitiated because employer decided to perform a dismissal procedure before retracting and imposed to the employee to sign a mutual agreement. (c. cass. 12th February 2014, n°12-29.208).

Moreover, French Supreme Court has canceled a mutual agreed termination as the employee was in a harassment situation during the conclusion of the mutual agreement (c. cass. 30th January 2013, n°11-22.332).

However, it is legal to terminate the unemployment contract by mutual agreement even if it exists some disputes between the employee and the employer (c. cass. 23th May 2013, n°12-13.865; c. cass. 15th January 2014, n°12-23.942).

3) You should be assisted during at least one meeting

Article L.1237-12 of French Labor Code says that employees may be assisted during the several meetings. Even if the law says nothing, it is better to called on the employee to negotiate within at least one meeting.

Judges are not strict about the time of the signature between the date of the meeting and its conclusion (c. cass. 3th July 2013, n°12-19.268).

Employers should inform the employee of being assisted during these meetings by:

  • Either a person of its choice who is employee in the company, in the presence of the staff representatives;
  • Either an employee's adviser chosen on an authority list.

An immediate superior can assist the employee only if the choice comes from the employee (c.cass. 29th January 2014, n°12-27.594). 

It is only when you decide to be assisted that employer can be also be assisted during the different meeting.

4) How much to negotiate the mutual agreed termination?

Employee must have been paid a specific allowance called « indemnité spécifique de rupture ».

The amount cannot be less than the dismissal indemnity applicable in the company's collective bargaining agreement or the dismissal indemnity according to the French Labor Code. This amount is a minimum can of course be negotiable.

Moreover, employer should pay the remaining bonuses and the rest of paid leave.

Within the mutually agreed termination, there is no period notice. This allowance is subject to CSG/CRDS.

For more detail, please refer to our previous article : http://www.legavox.fr/blog/frederic-chhum-avocats/rupture-conventionnelle-english-people-much-14766.htm#.VI66qskufhk

5) Your unemployment benefit (assurance chômage) can be differed

Indeed, if your specific allowance is upper than the legal indemnity, you will get the unemployment insurance, after a waiting period (période de carence).

To know the number of days of deficiency, the calculation is the following one:

  • difference between the specific allowance and the legal indemnity;
  • this difference is divided by 90;
  • the obtained figure correspond of the waiting period before obtaining the unemployment insurance.

Since the 1st July 2014, it can't be more than 180 days.

6) Can you conclude a mutually agreed termination when the contract is suspended?

For an employee who is not particularly protected, it is not forbidden for them to conclude a mutually agreed termination (parental leave, sabbatical leave, unpaid leave).

French labor law says nothing when the employee has a particular protection especially in case of work-related illness or accident.

Recently, the French Supreme Court has been decided that employer and employee can conclude a mutually agreed termination when the contract is suspended as a result of a work-related illness or accident, except in a fraud situation or vitiated consent (c. cass. 30th September 2014, n°13-16.297).

7) Your employer has to give an official form of the mutual agreement

Indeed, the French Supreme Court decided that the agreement should be established in two originals. On the contrary, the mutually agreed termination is being held null and void.

On the contrary, the mutually agreed termination has to be canceled (c. cass. 6th February 2013, n°11-27.000).

8) You have 15 days for retracting

Parties have to sign the official form to be sent to the Labor Administration.

Article L.1237-13 of the French Labor Code allows each party 15 calendar days to withdraw its wish to end the unemployment contract.

After this period, one of the parties (employer most of the times) should send to the Local employment Authorities (called “DIRECCTE”) for getting a specifically authorization. The departmental Labor Director has a 15-day prefix period, at the end of which his silence will be regarded as an approval. The date of termination cannot be earlier than the day following the acceptance by the Labor Authorities.

In the event of a refusal from this administration, the employment contract is not terminated and the employment relationship would continue.

For an employee representative, the mutually agreed termination will remain subject to the authorization of the Labor Inspector.

Employers often predate the mutually agreement to prevent the employee from retracting. But, in theory, it would be null and void but it is difficult to prove the fraud.

9) You have 12 months period to sue and the possibility to sign a compromise agreement

Employees have 12 months from the date of approval or refusal by the administration to sue.

Employee can conclude a compromise agreement. It should be noted that a mutual agreed termination is different from a compromise agreement (“transaction” in French). Many people confuse these two agreements.

It is possible to conclude a compromise agreement only after the approval of the administration or the Labor Inspector if it is a “protected” employee. Moreover, the compromise agreement allows no further claim against the employer about the unemployment contract execution and no about the conclusion (c. cass.  26th March 2014, n°11-21.136).

You can go to court to obtain the money which is not in the mutually agreed termination like overtime, bonus and back pay.

10) The mutually agreed termination: the only way to terminate an employment contract by common consent

In a recent case, the French High Court deemed that the mutually agreed termination is the only way for parties to put an end to the unemployment contract by common consent (c. cass.  15th October 2014, n°22.251).

A mutually agreed termination can't be concluded within the redundancy dismissal, because employees have some other guarantees. 

Frédéric CHHUM Avocat à la Cour 4, rue Bayard 75008 Paris

Ligne directe: 01.42.56.03.00

e-mail : chhum@chhum-avocats.com

blog: www.chhum-avocats.fr

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