Illegal work juristically indicates 6 categories of major frauds to the social legislation:
- dissimulated work: absence of obligatory declarations, handing-over of, dissimulation pay slip of work hours… ;
- the illicit loan of labour apart from the legal framework who delimits them strictly;
- bargaining: supply of labour with a lucrative aim;
- fraud with the incomes of replacement;
- irregular office plurality of employment;
- irregular employment stripped foreign workers of title of work and traffic of foreign labour.
Dissimulated work
It is about a paid activity not declared near the services of the State. It is a practice which one finds not requiring in branches of industry a great qualification, such as the construction industry, the restoration, the clothes industry, cleaning, guarding, agriculture, the live performance, linked activities with the removal…
Dissimulation of employee job: an employer does not carry out the declaration preliminary at the time of recruitment or does not give of pay slip to the employee, or if the pay slip mentions a number of hours lower than that really carried out.
There is dissimulation of activity when a natural person or morals carries on an activity with lucrative goal and withdraws itself intentionally from its obligations. It can be total (establishment not declared near the services qualified, in particular of the company and trade register; absence of obligatory declarations social or tax) or partial (secondary schools not declared).
Incurred sanctions
For the employee:
- the employee who was not declared will not be held responsible for the offence of the employer but it will be sanctioned by the social welfare if it is proven that it accepted this work with full knowledge of the facts. If the employee did not defraud Assedic, it is entitled to 6 months wage allowance on the basis of hourly Smic or the applicable collective agreement.
For the employer:
- 3 years of imprisonment and 45.000 euros of fine for a natural person. These sorrows are doubled in the event of repetition, and are raised in the event of dissimulated use of a minor subjected to compulsory education;
- with 225.000 euros for a moral person and the dissolution and closing of the establishment (Article L.362-3 of the current Labour regulation).
Other sanctions can be marked:
- prohibition for one 5 years duration with to exert more, directly or by anybody interposed, the community activity in the exercise or at the time of the exercise of which the infringement was made (Article L.362-4 of the current Labour regulation);
- seizure of the tools, stocks and machines;
- the posting or diffusion of the marked decision;
- prohibition, according to the methods envisaged by article 131-26 of the Penal code, the civic rights, civil and of the family.
When the infringement is noted, a certain number of assistances can be cancelled, like measurements of reduction or exemption of contributions at the social welfare for all it lasted of the infringement in the company, within the limit of 45.000 euros.
Precautionary measures
To fight against the dissimulation of activity, the article L 324-14 of the Labour regulation provides that the donor of work must ensure itself, at the time of the concluding of a bearing contract on the execution of a work or the supply of a performance of service or the achievement of a commercial act of an amount at least equal to 3.000 euros including all taxes, that its contracting is in rule so much on the level of its registration, if the latter is necessary, that of its social and tax declarations.
The law of August 13th, 2004 provided that this obligation of checking was to be renewed every 6 months until the end of the execution (Article L 324-14 modified of the Labour regulation).
The illicit loan of labour
The law prohibited that a person can provide, in the form of remunerated hiring, of the personnel paid with a user who employs it under his direction like his clean paid.
The provision of personnel “with lucrative goal” is not allowed, in the state of jurisprudence that if it is the accessory of a service contract (Article L.125-3 and L. 124-1 of the Labour regulation) or from now on, within the framework of shared work.
Only the companies of temporary work can carry out provisions subject to payment.
Incurred sanctions
On the penal level: the natural persons incur a sorrow of 2 years imprisonment and/or a fine of 30.000 euros, with 150.000 euros for the moral persons.
On the civil level: the contract can be cancelled like opposite with the law and order.
The profit company of the loan of labour can be considered as joint author of the offence and condemned for this reason.
Bargaining
One speaks about bargaining (Article L.125-1 of the Labour regulation) when labour is placed at the disposal by a company with another in order to benefiting from it and that this operation causes an injury with the employee whom it concerns or causes to elude the application of the provisions of the law, payment or convention or collective agreement of work.
Are aimed by this offence, the companies of temporary work which do not respect the law, and the subcontracts illicit.
The injury caused with the employee will result from the loss of advantage that it could have obtained if it had been employed directly by the user.
Incurred sanctions
Any natural person responsible for the offence is liable 2 years of imprisonment and/or a fine of 30.000 euros with or without prohibition to carry on the activity of subcontractor of labour for a duration from 2 to 10 years (Article L.152-3 in L.152-3-1 of the Labour regulation).
For the companies, the fine is of 150.000 euros with or without dissolution, prohibition to exert, closing of establishments, exclusion of the government contracts, confiscation… (Article 131-39 of the Penal code).
Fraud with the incomes of replacement
It is the fact of perceiving or of trying to unduly perceive by illegal processes an income of following replacement:
- unemployment pays poured under the mode of the insurance unemployment (Assedic) or mode of solidarity of the State (temporary allowance of waiting ATA and specific allowances of solidarity ASS);
- allowances allotted within the framework of the funds national of employment (allowances of anticipated retirements);
- allowances allotted under the short-time working and intended to avoid lay-offs;
- the contractual premium in favour of the recipients of the ASS;
- the return fee with employment.
The sanctions are at the same time penal (amends of 4.000 euros) and administrative (3 000 euros). The administration can also claim the payment of the unduly perceived sums.
Irregular office plurality of employment
The articles L 324-2 and following of the Labour regulation regulate the office plurality of employment for the duration of the work: no employee can be gainfully employed one or more beyond the maximum duration of work and no employer can resort to a person who does not respect this obligation.
The infringements with the L.324-2 articles and 324-3 are punished fine planned for the infringements of the 5th class. In the event of repetition within one year, the fine will be that planned for the infringements of the 5th class in repetition.
The office plurality in the private sector is possible with the proviso of not exceeding the duration maximum of work authorized by the law for the profession.
One can, in theory, cumulate paid and non-paid activities. Prohibitions of office plurality of employment can be envisaged by terms of collective agreements such as clauses of exclusiveness.
Except exemption, one cannot work more:
- 10 hours per day,
- 48 hours per week,
- 44 hours per week on average over a 12 weeks period consecutive.
No employee can achieve the work remunerated beyond the maximum duration of work, such as it arises from the legal tendencies of its profession.
IF you signed a clause of exclusiveness, you cannot claim at another station without the prior approval of your principal employer (even if it is on a purely voluntary basis). You must respect an obligation of honesty with respect to your principal employer.
Irregular employment stripped foreign workers of title of work
and traffic of foreign labour.
To come to work in France, it is necessary to have of a residence permit and an authorization of work. It is interdict with any person to engage or preserve at its service a foreigner in a professional category, a profession or an geographical area other than those which are mentioned on the title authorizing it to carry on an activity paid in France.
To make enter on the national territory of the foreign people, without administrative authorization is an offence.
Incurred sanctions
The penalties can go 5 years of prison and 15.000 euros of fine (by worker) for the natural persons, with 75.000 euros for the moral persons.
Under the complementary sorrows, the faulty employer, if it is itself foreign, can be condemned to a prohibition of stay for one 5 years duration to more (the art.364-8-6 modified Labour regulation), and if the infringement were made in organized band, it incurs a sorrow complementary to confiscation of whole or part of its goods, whatever is nature (modified Article 364-8 of the Labour regulation).
The employer is held to check near the administrations territorially qualified the existence of the title authorizing the foreigner whom he engages to exert an activity paid in France, except if this foreigner is already registered on the list of the applicants for work held by ANPE (Article 18 of law 2006-911 relating to immigration and integration).
ANPE itself is held to carry out this checking (art. L.311-5-1 of the Labour regulation).
The foreigner, employed without title of work, is assimilated as from the date of his recruitment, with a worker regularly engaged with regard to the obligations of the employer relating to the regulation of work.
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