Summer has not been synonymous with rest for the regulatory environment. The resumption of activities is therefore an opportunity to prepare for compliance with the January1, 2020 regulations.
Legislative changes
Unemployment insurance reform
From 01.01.2020, the reform will introduce a bonus-malus system for unemployment insurance contributions in companies with more than 11 employees, based on the use of fixed-term and temporary contracts in 7 sectors of activity, including catering and transport.
This system could be extended in the future.
The amount of the unemployment insurance contribution will vary from 3% to 5%, depending on the number of employees registering with Pôle Emploi after working for the company. In addition, a flat-rate contribution of €10 will be payable for each CDD d'usage.
As of November1, 2019, 6 months of activity instead of 4 will be required for employees to be eligiblefor unemployment benefits.
Employment obligation for disabled workers
Decrees 2019-521, 2019-522 & 2019-523 of 27.05.2019 - JO 28.05
On January1, all employers will have to declare the number of disabled workers covered by the employment obligation. (Declaration drawn up by the firm for payroll clients).
Only employers with more than 20 employees will be required to meet the following obligations:
- theemployment of disabled workers at a rate of 6% of the workforce.
- the implementation of a multi-year program to monitor this obligation, negotiated within the framework of an approved agreement, with a report on actions presented to the CSE at the end of the year.
The obligation may be discharged by payment of a contribution calculated as follows: missing jobs X coefficient based on headcount.
Contracts with adapted companies, ESATs or TIHs will no longer constitute a means of discharging the obligation, but the amounts paid may partially reduce the contribution.
Reform of threshold effects
Law 2019-486 of 22.05.2019 known as PACTE - art L.130-1 CSS
The Pacte Act has profoundly reformed workforce thresholds, triggers for a number of labor law obligations, with 3 key measures:
- refocusing on 3 thresholds: 11, 50 & 250 employees;
- décompte aligné sur les seuils de la sécurité sociale </strong: moyenne du nombre d’employés au cours de chaque mois de l’année civile précédente ;
- crossing a threshold: taken into account only if reached during 5 consecutive calendar years.
Monitoring the workforce will enable employers to avoid certain obligations (taxes, higher rates, etc.).
This does not apply to the rules governing the appointment of employee representatives.
The Social and Economic Committee - CSE
Operational since 2018, the CSE must be set up by 01.01.2020 in any company with more than 11 employees.
As the electoral process is relatively long and rigorous, it is advisable to start operations 3 months before the deadline in order to meet the deadlines.
The CSE replaces the former institutions(DP, CE, CHSCT) whose mandates will end on January1.
Supplementary defined-benefit pensions
Order 2019-697 of 3.07.2019 & 2019-766 of 24.07.2019
The supplementary pension schemes for employees and managers contributing to the general scheme have undergone a major overhaul:
- annuity payments cannot be made conditional on the beneficiary's presence in the company,
- preservation of vested rights in the event of departure from the company before retirement,
- reduction of the length of service and contributions to 3 years,
- professional performance conditions,
- compulsory PERCO coverage for all employees prior to their introduction.
In 2020, PERs (Plan Epargne Retraite) are set to replace PERCOs and supplementary pensions.
Case law clarifications
Validation of the redundancy scale...
Avis Cass.n°19-70.010 du 17.07.2019
Implemented by the ordinances of 2017 and heavily criticized ever since - including by some courts - the scale setting the amounts of compensation for dismissal deemed to be without real and serious cause has just been deemed compliant with international law by the Cour de Cassation.
Judgments refusing to comply will therefore be annulled in the event of appeal or cassation.
And examples of null redundancies
CA Versailles n°18/02189 of 18.04.2019
After a long legal saga that took them all the way to the European Court of Justice, the judges have just given their final verdict on the issue of veils in the workplace.
The judges point out that the employer may introduce an obligation of neutrality, provided :
- be provided for in the internal regulations,
- to be general and undifferentiated,
- to apply only to employees in contact with customers.
Otherwise, only an essential and determining professional requirement can legitimize a ban on wearing religious symbols, which is not the case for a customer's requirement.
The dismissal is deemed discriminatory and therefore null and void.
Cass soc. n°17-29.017 of 17.04.2019
The law allows employers to offer retirement to employees who have reached the legal retirement age, and to automatically retire employees who have reached the age of 70. However, if the employee has already reached the age of 70 at the time of hiring, the employer cannot automatically retire him on this ground.
Retirement is tantamount to dismissal because it is based on age and is therefore discriminatory.
Our legal and social services departments are at your disposal for any further information you may require..
New information on conventional termination
Cass soc. n°18-10901 du 5.06.2019, n°17-14232 & 18-14414 du 3.07.2019, n°18-22897 du 19.06.2019, n°17-28767 du 9.05.2019
Judges have made a number of clarifications to the conventional severance system, demonstrating both flexibility and rigor, reminding us that caution is still required when implementing this procedure.
- Nullity of the procedure in the absence of delivery of the documents to the employee: Only proof of delivery to the employee of a copy of the severance agreement signed by both parties enables him/her to validly exercise his/her right of withdrawal or to request homologation.
- Failing this, the termination is null and void.
- WithdrawalAs long as the letter of withdrawal was sent to the employer before the end of the cooling-off period, it is fully effective, regardless of whether the letter was received after the expiry of the cooling-off period .
- The termination is cancelled, even if the request for homologation has already been sent.
- Irregularity of procedure : If it is shown that failure to comply with a formality is likely to compromise the integrity of the employee's consent, the termination agreement may be annulled. For example, if the employer is present at the interview, but the employee is not, the agreement may be annulled.
- It will be necessary to prove that this imbalance put pressure or constraints on the employee, prompting him to sign the agreement..
- Termination concluded with an unfit employee: the French Supreme Court (Cour de Cassation) accepts thatan employee who has been declared unfit for work, or unfit with reservations, may validly negotiate a contractual termination of employment. However, the validity of the termination agreement is subject to the absence of any defect in consent ( e.g.: if the employee's state of health does not allow him/her to make a decision with full knowledge of the facts) or fraud (e.g.: circumvention of the specific rules governing dismissal for unfitness).
In this case, it is preferable toinform the employee :
- the employer'sobligation to reclassify ;
- the amount of the specific severance pay for unfitness.
