a. General Case Law tends to be Severe
Below are two important decisions from recent years which demonstrate how the courts assess various factors to determine whether or not a subordination relationship is established.
Cass. soc, decision dated 24 April 2013 n° 399
In this case, services agreements concluded with reality TV show participants were re-
characterized into employment agreements. The judges, after looking into various factors establishing the existence of a subordination relationship held that “there was between the Production team and the participants a subordination relationship characterized by the existence of an “agenda” which outlined the schedule for each day, imposed filming periods, repetition of scenes and repeated interviews conducted in a way that led the interviewee to say what was expected by the Production. The subordination relationship was also manifested in the Production’s choice of clothing, imposed hours going up to 20 hours per day, obligation to live on the site and not to engage in personal activities, monetary penalties in case of departure during filming, and finally the obligation to follow activities organized by the Production which all put the participants in a dependency relationship with respect to the Production team (…)”
Cass. soc., decision dated 10 April 2013 n° 11-27.384.
In this case the judges upheld the Court of Appeals decision and refused the re-characterization claim tbrought by a lawyer. The Supreme Court held “given that MZ. had personal clients, was registered with the social security agency (URSSAF) as self-employed independent lawyer, his remuneration was paid either by his clients directly or as fees like other non-salaried lawyers, that specific materials were put at his disposal by the law firm to receive his own clients and finally on his headed paper he presented himself as a member of the law firm like other lawyers without mentioning his alleged salaried status (…) the Court of Appeal rightfully concluded from these factors that the subordination relationship was not established”.
b. New and Expected Developments on the New Economic Actors
As in other countries, a recent hot topic is the arrival of new economic actors: companies such as Uber that are part of the new on-demand and sharing economy. The question pertaining to the qualification of their contracts and work agreements has been at the
center of numerous cases recently and promises to change the legal landscape.
The French supreme court recently ruled that two drivers under an independent status
employed by a taxi company could not obtain the re-characterization of their contracts as they did not demonstrate that they were at the company’s permanent disposal, they were free to work with other companies, free to determine their schedule and that they had determined themselves the amount of their fee (Cass., soc, October 20, 2015, n°14-
It also held that where drivers are in charge of their fees, their holidays, do not have to provide information on their mode of payment and are free to work for a number of companies, they are to be considered an independent worker and not an employee (Cass. Soc., March 17, 2016, n°12-29219).
The Paris Court of Appeals has also specified that the restrictions of geolocation, maintenance and tasks related to a vehicle imposed by the hire company were only linked to the necessity of ensuring the quickest and most efficient client service and did not, in itself, give rise to a relationship of subordination (CA Paris, January 7, 2016). In these rulings, judges appear to focus on the means of carrying out the activity and the extent of liberty afforded to the driver to define this activity.
This is obviously a very new topic, but aware of the plethora of law suits pertaining to this matter, the French legislators have already taken action to clarify certain points regarding these new professional situations.
The recent Labour law of 2016 (commonly known as the “El-Khomri law”) introduced into French law the notion of independent workers using a platform, in particular those on the internet or through phone applications (for example, car-hiring/taxi services, food delivery services). The platform has a “social (or “employment”) responsibility towards the contractor, if it determines the characteristics of the service provided and sets its price. Furthermore, though the contractors are not covered by the same workplace insurance as employees, they may choose an insurance covering such risk, in which case the platform must cover the cost, up to a ceiling set out by a decree which has yet to be published. Moreover, this new law states that these independent contractors are entitled to professional training in the same manner that already exists for certain “liberal” or “independent” professions. The platform must cover the cost of this training. Lastly, the law creates collective rights for the independent contractors of a platform: in case of group action resembling a strike they are protected from sanctions and they can unionize.
2017 is a year rich in promised rulings and with the presidential and Parliament action, new legislation on the matter.