La minute du lundi

Remote Strike

Monday, June 17, 2024

Photo: ©Q.Pruvost @Wipplay

Tick-tock, tick-tock, the Paris Olympics are in 40 days! As recommended by the government, if not on vacation, Parisians (who can) will telework during the Olympic period.

The habit no longer needs to be demonstrated. In 2023, 37.7%* of French people teleworked at least once a week. But, there is no right to telework! It always requires a request followed by an agreement from the employer.

For those who cannot telework due to their activity: will they be able to strike to express their dissatisfaction?

We know the old stereotype that sticks to the French: always on strike! The Olympics are a sporting event but also an opportunity for France to show its best side.

Beyond sports and diplomatic considerations, what does the law say? In principle, as long as it is a collective and total work stoppage and the professional demands have been announced to the management, the strike is legal.

But rather than endure such movements, anticipating the Olympics by involving social partners will prevent a strike movement, even remotely.


The minute

Unused leave, arrivederci

Monday, June 3, 2024

Photo: ©avandamme@Wipplay

Heading to Copertino, in southern Italy. A public servant resigns to take early retirement. He has 79 days of unused, unpaid leave…

What should be done about the unused annual leave of an employee who has previously resigned?

For the Member States of the European Union, the interaction between national law and European law sometimes requires interpretation.

Last January*, the Court of Justice of the European Union ruled: the right to paid leave is mandatory. Thus, an employee who was unable to take all their annual paid leave before resigning is entitled to financial compensation.

However, there is an exception. The obligation to compensate does not apply if the employee deliberately chose not to take their leave despite encouragement and information provided by the employer. It should be noted that the burden of proof lies with the employer.

In French law, this debate has not yet been raised!

Want to better understand labor law and particularly the impact of illness on paid leave? Check out our training courses!

*CJEU, January 18, 2024, no. C 218/22

The minute

Tested and to be Proven

Monday, May 20, 2024

Photo: ©T.Boitelle @Wipplay

The exception (often) confirms the rule. When evidence is obtained through deceit or without a person’s knowledge, it is considered unfair and thus, in theory, inadmissible.

There is no longer any doubt. In 2023, 37.7%* of French people worked remotely at least once a week. But, there is no right to remote work! It always requires a request followed by the employer’s approval.

That was before. In December 2023*, the Court of Cassation made an unprecedented reversal. Now, the right to evidence can justify the production of unfair evidence. The judge must still consider the proportionality of the evidence against potentially infringed rights. This is known as the balancing method.

This decision was put into practice as early as January 2024**. In a case of moral harassment, an employee produced a secret recording of a colleague. The judge weighed the evidence: it was not essential to support the employee’s claim; hence, it was dismissed.

While the evolution of case law is certain, the admissibility of unfair evidence is not automatic and remains subject to judicial review!

*Court of Cassation, Plenary Assembly, December 22, 2023, 20-20.648

**Court of Cassation, Social Chamber, January 17, 2024, 22-17.474

The minute

Internship Guide

Monday, May 6, 2024

Photo: ©P.Romeuf @Wipplay

The internship season is open! What happens on the company side?

It goes without saying, but let’s recall that an internship is not an employment contract. Unlike an employee, the intern has no production obligation. The main purpose of the internship is educational, and its duration is limited.

The intern cannot replace a vacant employee, address a temporary increase in activity, or occupy a seasonal job. In any case, the qualification of the work relationship will not depend on the name given to an agreement but on the actual conditions under which the activity is performed…

What are the risks? An administrative fine and/or the possibility of reclassifying the internship agreement as an employment contract. The courts frequently remind us of this, even with regard to… a law firm*.

An internship is often an opportunity to gain initial professional experience. It allows the intern to develop a taste for work. Do not hesitate to assign them interesting tasks, and – who knows? – you might be surprised by the freshness, simplicity, or relevance of their accomplishments.

*CA Versailles, 28-02-2024, no. 21/03105

The minute

The Midlife Crisis?

Monday, April 22, 2024

Photo: ©L.Garfield @Wipplay

The Monday Minute you are about to read is the 50th! A milestone that is also significant in social law.

What does it mean to reach a milestone in a company?

Between 1 and 10 employees, 11 and 19, 20 and 49, 50 and 199, 200 and more, different thresholds, different atmospheres…

The number of employees in a company directly impacts the employer’s obligations and the administrative framework to be provided.

Each year, the employee count is calculated, and obligations may potentially evolve. For example, starting from 50 employees, it is mandatory to establish an internal regulation, set up the economic, social, and environmental database (BDESE), or arrange a break room. Representative trade unions can also appoint a union delegate (DS) or a representative of the union section (RSS)! Additionally, it will be necessary to review declarations, contributions, and social charges.

In short, it is crucial to master the calculation of the workforce… Need a hand recounting them?

The minute

R for “Rupture Conventionnelle” (Mutual Agreement Termination)

Monday, April 8, 2024

Photo: ©A.Lecocq @Wipplay

The mutual agreement termination is -always- popular.

Since its implementation in 2008, its great flexibility, making it a win-win mechanism, has continuously attracted interest. In the last quarter of 2023, a record number of 130,053 mutual agreement terminations were recorded.

Neither resignation nor dismissal, the mutual agreement termination allows the employer to negotiate the departure of their permanent employee by mutual consent.

Its advantages for the company are tangible: a shorter notice period, no need for justification, and prior negotiations reducing the risk of conflicts… As for the employee, they are entitled to the same severance pay as in the case of dismissal and unemployment insurance coverage.

A victim of its own success? With the government’s objective of “full employment,” a reform of the mutual agreement termination as we know it could be considered. Already in September last year, the cost of mutual agreement termination was increased to 30%. Stay tuned!

The minute

The “Fun and Pro” Case

Monday, March 25, 2024

Photo: ©B.Krummenacker @Wipplay

Is a lack of sense of humor a legitimate reason to dismiss an employee?

At first glance, the answer is simple: no.

However, the issue becomes more complex when considering the alignment of the employee with the company’s culture, a set of practices that characterize management and team cohesion.

An illustrative case when discussing humor and unfair dismissal is the “Fun and Pro” case, which lasted nearly 10 years. The reason? The dismissal of an employee, partly justified by his “refusal to adhere to the company’s fun and pro value” and his “cultural misalignment.”

He who laughs last laughs best. In January 2024, the judicial saga ended with the Paris Court of Appeal ruling that cultural misalignment is not a legitimate reason for dismissal and the employer cannot force an employee to assimilate the company’s identity at the risk of infringing on his freedom of expression and dissent.

ærige avocats ensures to always be very professional (and sometimes fun too)

The minute

I for Individual Interview

Monday, March 11, 2024

Photo: ©S.Laurencin @Wipplay

It’s time to clarify the term “interview”. Whether it is professional, annual, related to telework or working hours, at the beginning, end of term, or evaluation… Where do you start?

Individual interviews are valuable tools to streamline the operations of a company and to implement the employer’s health and safety obligations.

They serve various purposes: to assess the employee’s professional skills, discuss career status and job satisfaction granted by the employer, and (re)establish the contractual framework…

Some are mandatory, such as the professional interview, and non-compliance can lead to sanctions. Others are optional, like the individual performance review, which is only required when a professional agreement stipulates it. It can be confusing as these interviews can overlap or even coincide.

Our advice? Do not forget to produce a written record of each interview, as the burden of proof lies with the employer.

The minute

Italian-style Contract Termination

Monday, February 26, 2024

Photo: ©A.Bartolo @Wipplay

Arrivederci* yes, but on good financial terms!

In Italy, regardless of the reason for termination of the contract, employees are entitled to severance pay, even in cases of resignation.

How? Thanks to Trattamento di Fine Rapporto (TFR). The mechanism is simple: each year, the employer sets aside a portion of the salary (around 7.5%). Thus, TFR is considered as full-fledged compensation… with the difference that it is paid out at a later date.

It can be received either upon termination of the employment contract or partially in advance if an employee has at least 8 years of seniority and a personal situation requiring financial assistance (purchase of property, medical care, parental leave…)

In France, it’s a different story. Payment of severance pay is not automatic: its contents vary depending on the type of contract (permanent, fixed-term, temporary) and the circumstances of its termination (dismissal for cause or economic reasons, resignation…).

To navigate through this, just ask us, feel free to give us a call!



The minute


Monday, February 12, 2024

Photo: @C.Millerand @Wipplay

The home-to-work commute, a decompression chamber, literary escapade, incessant smartphone scrolling, or second office?

Generally, the commuting time between home and the usual workplace is not compensated for the employee.

But every rule has its exception. When the employee performs specific tasks as per their contract and/or follows directives from the employer, their work is considered effective even during travel.

This conclusion was reached by the Cour de Cassation in 2022 concerning a traveling employee, whose job necessarily involves frequent travels.

In addition to this specific scenario, if the travel time exceeds the normal commuting time (for meetings or client appointments outside the company), it should be compensated with financial compensation or time off (Article L3121-4 of the Labor Code).

In any case, these provisions should not be confused with the full or partial reimbursement of transportation costs, which, under certain conditions, are mandatory for the employer!

It’s worth noting that in 2024, the threshold for social and tax exemptions is increased to 75% of the value of transportation subscriptions.

Subway, work, sleep…

The minute

Green Challenge

Monday, January 29, 2024

Photo: © A.Lecocq @Wipplay

Ever heard of CSR? Corporate Social Responsibility spans three dimensions: social (reducing discrimination), societal (relations between suppliers and customers), and environmental (environmental protection, combating climate change, resource management).

Since January 1, 2024, the European directive CSRD (Corporate Sustainability Reporting Directive) has deepened this responsibility. It regulates the reporting of non-financial data within sustainability reports and significantly expands the scope of those affected. While only listed SMEs are directly targeted by the directive, all businesses are impacted as actors in value chains.

No room for greenwashing! Since 2023, the law mandates that companies substantiate their commitments.

This substantial effort requires the mobilization of reporting tools and coordination with the right stakeholders… Yet it’s crucial given that 75% of employees choose their company based on its CSR quality.

The minute

Prescription Leave

Monday, January 15, 2024

Photo: ©B.Savatte @Wipplay

In France, the rule is simple: every month, an employee accumulates two and a half days of paid leave for each month worked, and does not accrue leave during a simple sick leave.

This rule is now under scrutiny. In September 2023, the Court of Cassation decided to apply two European texts – regarding working time and fundamental rights – and recognized that a French employee continues to accrue paid leave even during a sick leave.

This decision could potentially cost businesses €2 billion annually if generalized.

Legislative change is announced, but questions abound: what calculation method? What about retroactivity?

Simultaneously, in a preliminary question of constitutionality, the Constitutional Council is expected to make a decision on the matter by mid-February.

The minute

Social Law: What Does 2024 Have in Store for Us?

Monday, January 1, 2024

Photo: ©M.Chesnel @Wipplay

Specially selected for you by Monday’s Minute:

4 measures that will shape social law in 2024!

1. The one creating opportunities: the apprenticeship bonus

With a horizon of 1 million apprentices by 2027, the development of apprenticeships continues in 2024. To encourage this, the €6,000 bonus for hiring an apprentice is extended this year.

2. The one disrupting the routine: the France Travail network

Goodbye Pôle emploi, hello France Travail. A new name aiming to create a national network supported by Cap emploi, local employment services, and public territorial services. The ultimate goal is to improve support for job seekers and businesses. Stay tuned for more…

3. The one benefiting the planet: coverage of private bike rental expenses

Employer participation in transportation costs has been a common practice since 2009. Starting July 2024, this obligation will extend to expenses incurred from private bike rental services. Previously, it only applied to public bike rental services.

4. The one sparking debates: the reform of mutual termination agreements

As unemployment rates rise again, the government seeks answers. Following the over-taxation of this termination method, reforming mutual termination agreements is now being considered. Undoubtedly, this will stimulate numerous discussions in the professional world…