9 key questions about partial operation

1 – Are employees on a fixed number of days or on a fixed number of hours included in partial operation?

In the event of a reduction in the working hours usually applied within the establishment, employees whose work time is determined by a fixed number of hours or days in the year, pursuant to Articles L 3121-42 and L 3121-43, may not benefit from partial operation. French Employment Code, Art. R 5122-8(2)

Specific rules on work time relating to this type of flat-rate agreement do not ascertain "the hours usually worked by the employee" as mentioned in Article L. 5122-1 of the French Employment Code. It is therefore not possible to calculate the number of hours effectively not worked in case of a reduction in hours. Employees paid according to an annual fixed rate of days or hours or a similar system cannot therefore benefit from partial operation.

However, they may benefit from partial operation in case of complete closure of the establishment or the part of the establishment in which they work (e.g. in case of complete closure of a department or business line).

"Closure of an establishment" means the complete shut-down of the business of the establishment or part of an establishment, a production unit, a service, a workshop or a team responsible for carrying out a project, in particular in relation to intellectual services. DGEFP technical doc. August 2013 form no. 5.3, G.

Employees paid according to an annual fixed rate of hours or days may benefit from partial operation from the first half-day of closure of the establishment.

To determine the number of hours that may be compensated for partial operation when the employee's work time is determined according to a fixed number of hours or days over the year, the statutory period of days closed of the establishment shall be taken into consideration. French Employment Code, Art. R 5122-19(2).

E.g.:

One day closed corresponds to 7 hours, and a half-day corresponds to 3.5 hours. If an employee’s establishment is closed for 2.5 days, the number of hours that may be compensated is: 2 × 7 + 3.5 = 17.30 hours. DGEFP technical doc. August 2013, form no. 2.3 and form no. 5.3, G.

 

2 – Employees work on the basis of 39 hours per week. Can I claim compensation for 39 hours?

Currently, partial operation only covers the statutory working time, i.e. 35 hours per week.

Article L 5122-11 of the French Employment Code

E.g.:

An employer decides to not employ its employee two days per week. His employment contract stipulates a weekly work time of 39 hours:

39hrs / 5 days = 7.8 hours per day

Monday, Tuesday, Wednesday worked = 7.8 hours * 3 days = 23.4 hours worked

Statutory 35 hours – 23.4 hours worked

= 11.6 hours which may be compensated under partial operation

You will therefore write on the claim for compensation:

• 23.4 hours worked;
• 11.6 hours unemployed.

Structural overtime worked by companies, which remained at 39 hours per week, is not compensated by the specific allowance for partial operation (or partial unemployment).

With regard to the employer's obligation to continue to pay remuneration for structural hours worked between 35 and 39 hours, judgments specify that partial unemployment suspends the employment contract as well as the obligation to pay the agreed salary. Consequently, overtime normally worked under a collective schedule of more than 35 hours must not be paid, "unless the employer has expressly agreed, for example, through a collective agreement, to continue the remuneration in case of partial operation."

Court of Cassation, labour division, 30 Sept.1992, no. 88-44.720; Court of Cassation, labour division, 2 Feb.1999, no. 96-42.831, no. 617 P; Court of Cassation, labour division, 9 March 1999, no. 96-43.718, no. 1070 P; Court of Cassation, labour division, 11 Oct.2005, no. 03-41.617

Cass. soc. 28-10-2008 no. 07-40.865 (no. 1806 FS-PB), Sté MGB v Ceccotto: RJS 1/09 no. 61 Bull. civ. V no. 202.

 

3 – Do all company employees have to be affected by the partial operation?

The reduced operations or the shutdown of operations must be temporary and collective. It must therefore affect the entire establishment or part thereof: production unit, workshop, service, team. All employees of the company are intended to benefit from compensation for partial operation, including part-time employees and home workers.

Partial operation is a collective measure, which must therefore not affect one employee in particular but it can affect an objective category of employees who are part of the same service for example.

However, in the event of a collective reduction of working hours, employees may be alternately individually placed in partial operation, in order to allow the implementation of a "rotating" system for each production unit, workshop, service, etc. DGEFP technical doc. August 2013 form no. 2.5.

 

4 – Can corporate officers, freelancers and interns benefit from the provisions on partial operation?

No.

Because only employees with an employment contract can benefit from partial operation.

However, measures are being considered to support freelancers and agents. The government is considering paying a monthly allowance - 1,500 euros per month has been mentioned - to those who have had to close their business and to those who have lost at least 70% of their turnover. It is likely that provisions on this matter will appear in the next few days.

 

5 - Can an apprentice benefit from the partial operation arrangement?

Yes. An apprentice can benefit from partial operation in the same way as other company employees.

According to a memorandum dated 17-6-1988, apprentices are entitled to a specific allowance paid by the State capped at their usual net salary. However, hours under training contracts are not compensated.

However, in its press release of 13 March 2020, the Ministry of Employment stated that in case of partial operation, the salary of apprentices would be maintained. Training contract hours should therefore also be included. We are currently awaiting the official provisions. 

 

6 - I am a temporary agency worker, my contract is ongoing. Can I benefit from partial operation?

Yes, when the establishment in which you carry out your assignment has placed its own employees in partial operation. However, this is not the case if you start your assignment when the establishment is already in partial operation. In practical terms, if your contract is interrupted before the end of the partial operation period, you only benefit from the time under your contract. Its renewal does not entitle you to the benefit of partial operation.

 

7 – Do employees acquire paid leave during partial operation, when there is a complete shutdown of the operation or a reduction in working time?

Yes, all hours not worked, regardless of whether they grant entitlement to payment of the partial operation allowance, are fully taken into consideration when calculating paid leave entitlements.

French Employment Code, Art. R 5122-11

Whether it relates to partial unemployment with:

• Closure for full weeks;
• Or a reduction of the daily or weekly number of hours.

 

8 – What partial operation period must be specified?

Due to a lack of visibility of the duration of the epidemic, you can currently apply up to 30 June 2020.

This memorandum will be completed as soon as possible.

 

9 - One of my employees is on sick leave during the partial operation period. How is he compensated? 

Social security: It is not possible to combine sick pay and compensation for partial operation during this period. An employee on sick leave when their establishment is placed in partial operation can only benefit from compensation payable in respect of sick leave.

Employer: Unless more favourable provisions are specified, continued pay is calculated on the basis of the reduced hours implemented within the company during their illness. The compensation must therefore be calculated on the basis of the hours worked during that period and the partial operation compensation that the employee would have received had they been at work. These rules have been issued by the Court of Cassation in various judgments. The purpose of this position is to avoid an employee on sick leave being paid more than if they had been placed under partial operation.

 

“Our experts are constantly monitoring regulatory changes providing support to businesses. Our articles are updated by midday on the basis of press releases and the publication of decrees by official bodies, which are deciphered by our experts. There may sometimes be a couple of hours delay between the official texts and our publication, the purpose of which is to provide you with preliminary answers to your questions.