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Are they acting legally?

Posted by samsam-321481 - Created: 6 years ago
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9 replies (Showing replies: 1 to 9)

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Posted by ChristopherL-188542 - 6 years ago

My head is all over theplace.

Yes samsam that is fairlyapparent from your posting and it is to be expected because your head is easilyable to calculate the injustice of the situation. Injustice is like a cancer – it eats you outeventually.

But what about yourheart? Is that all over the place aswell? You mention your heart in yourfirst sentence and I believe in first instincts being the truest. Your heart seems to know what to do because you say;

I need the guts to leave

Yep – “guts” are a heart choice,not a head choice. Not easy and who can fault you in the catch-22 in which youfind yourself.

Traps like this sometimesneed catalyst or some revolutionary element to allow a healingtransformation. In the previous threadthat we refer to the other AE was galvanized by a particularly unjust act and wasalready in a process of dismissal and simply seeking fair settlement which Ibelieve actually occurred. It was a transformational moment and I believe itled to a much better long term outcome for that AE.

Inyour case you don’t have a particular catalyst at the moment but why not openup your heart to create one? For example, you say thatyour employers are bullies and that you know that you need the guts toleave.But you also say that youstrongly believe you do great work and that you deserve a raise.Why don’t you take the bull(y) by the hornsand start acting like your own boss which is what an AE is supposed to be? Why not create the opportunity where you are guaranteed to get one or the other of these wishes in a fair and respectful fashion?

Bullies must be challengedbut this can be done with head and heart in unison rather than in a moment ofdefiance or desperation. Why not politely and professionally informyour customer (note the change in language now) verbally and in writing thatbased on cost indices of last 2 years, your billing rate for services rendered (nothourly rate) will be increased as of next month? Hey – how about that? You are your own boss, the CEO of your ownfuture – you deserve a revenue increase (not salary raise) and you have set out toachieve it. This will make your headfeel better because you address the injustice all by yourself using dignified and legal means. Then for your heart: well your proposal may be refused and you maybe told to take a hike – so now you get to experience the transformation thatyour heart of hearts knew was necessary – separation. But just like the AE on the other thread –things can work out, arrangements can be made in separation and you can rightly feel proud oftaking control of your life.

Oh, and by the way, ifseparation is the outcome then you can also insist upon decency. The bullies don’t have to get off lightly ifthey are not forthcoming in being fair to you with severance pay and unpaid holiday pay.They are committing a criminal act that has potential PENAL sanctions – not just CIVILsanctions.You really do not wish themill and you do not want it to come to that and I would advise that you in no way threaten such outcomes while you are negotiating.But if the other party doesn’t see the merit of you taking responsibility for your AE legal status and they continue to be unreasonable and unfair in separation, then you would getfull support for a grievance taken through the “Inspection de Travail” for the previously mentioned "dissimulation d'emploi salairié" and youcould then let them know that.

Best of luck from head andheart.

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Posted by samsam-321481 - 6 years ago

Have just read the 'thread' that Christopher mentioned, food for thought, many thanks. Time for a few more sleepless nights now :)

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Posted by samsam-321481 - 6 years ago

Thank you so much for everyone's invaluable advice here, heart of hearts I know it is illegal what they are doing and need the guts to leave, and do something about it BUT whilst I am there I am getting paid so it is a bit of a catch 22 situation. I am feeling pretty down about this at the moment.

About a month ago I asked for a rise based on the sheer amount of work I am doing, I also again asked for a contract, I was told in no uncertain terms that a contract was out of the uestion and that there was not enough money 'in the pot' to give me a rise, my justification was the amount of hours I put into the business (on their say so of course) and the sheer work load, running the front of house business, doing the accounts, office work, cleaning etc and the fact that I had been on the same rate for the past 2 years. I was basically told if I don't like it then to find work elsewhere. They were pretty nasty about it too and almost ignored me for a couple of days after that.

They are bullies, that is for certain, they know that fulltime work is not easy to find in France and they play on this. They take over 3k per week under the counter, fancy holidays every few months, etc etc, yet pay AE's a pitance.

Last week, on a whim they told me that my work was excellent and that I was a real asset to the business, I get raving testimonials about my work on a weekly basis from clients, with my name all over it, that says something, but for them they just treat us like idiots. My head is all over the place.

So is it URSSAF I need to speak to about this? I can honestly list pages of information on what they are doing illegally, it shocks me they are getting away with it and for so long. I thought about speaking to the local Mairie to get advice and to also speak to the centre des impots?

I am fluent in French, multi talented and damned hard working, just hate being taken for a mug.

Sorry for the rant...

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Posted by Olivier06480 - 6 years ago

I agree with ChristopherLAnd if they say No, well, you will know at what level they value your input and hard work...

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Posted by ChristopherL-188542 - 6 years ago

We discussed a very similar issue exactly one year ago on this thread
I think TomTom has pointed out the essence of the affair. It's not a pretty choice - [shut up and continue to receive an income] OR [speak out for dignity, respect for the law and decent employer behaviour and probably lose your job]
What would be the most desirable outcome for you? You say you have asked for a contract - maybe point out to them that you have proved yourself over 2 years and the state of affairs gives you a "de facto" contract in the eyes of the law and you'd just like to formalize it without any fuss to anyone.

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Posted by TomTom-248588 - 6 years ago

it sounds not legal but do you want a lengthy legal fight or a real job?

if you want a real job then focus on convincing your boss you are worth it.

if you want out with some money after a legal fight then collect evidence over 3 months and go to the URSSAF; you might get a a few thousand euros and your boss's company will be shut down.

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Posted by cj82 - 6 years ago

Totally illegal. Any regular, compensated work, using their equipment, and where they determine the hourly rate is employment. Otherwise you would be a contractor and could tell them that you didn't want to turn up on a particular day because you were working with another client.

My old boss did this to me. When I started, I agreed to be AE (needed a job so just went along with it), but I did request that we put a basic employment contract in place (not a proper CDD or CDI- literally just a standard non-French contract between us laying out the terms of our agreement). He refused, as he did not want a paper trail connecting the fact that I worked there. Despite that, he expected me to be in the office every day working way more than the number of hours allowed in France of course. I was using his equipment, had a company email address and was paid regularly from the company bank account (not in cash thankfully, so I could prove I was being paid by his company).

I got on with the job for a year, working not only the hours that he had set and expected, but also many more, doing a good job for him, and bringing in good money for his company. He used to make me go on work trips and then refuse to pay my business expenses (so when it suited him, I was an employee, but when it didn't he couldn't be bothered).

Then I asked for some time off, and he didn't want to give it to me (as AE, I should have been able to dictate exactly when I was or wasn't going to work, but he refused, despite me not having taken any time away from the office in the whole time I had worked there). So he decided to terminate our 'agreement' rather than give me the time off!. In the absence of any written contract, I thought I was not going to have a leg to stand on, but after some extensive research, I discovered that in the absence of a contract, it is assumed that an open-ended contract is held, and therefore he was subject to the same laws as other employers (and therefore could not just terminate my employment because I wanted to go on honeymoon)! I was also able to prove that he had been regularly employing and paying me in his office, not as a consultant but as a full-time employee and therefore could have him prosecuted for 'dissimulation d'emploi salarié'.

So I did what I had to do, and laid my cards on the table. He thought because we had no contract that he could just do what he liked without repercussions. He couldn't. So I said that unless he played fair and paid me the compensation I was due for him terminating my work there with no valid reason, that I would bring to attention the fact he had been employing me as AE for over a year, which would result in hefty charges and problems for him. Realising I was serious, he paid up, very quickly and I have thankfully never had to see his miserable face ever again!

If I were you, I would have a chat, and bring to light some of the legal implications. If they try and fire you, do what I did, and point out that they are subject to unfair dismissal in just the same way as any other employer, despite not having a contract (you can prove that you are an employee). If you get paid by bank transfer, and can prove having been there regularly for 2 years, then you have a good case to win this.

It really angers me that people think they can get away with this. Fine for a couple of weeks work here or there, but for 2 years in the same job! That is disgusting. Take them to the cleaners!!

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Posted by electechmech-277867 - 6 years ago

As AE you are self employed and paying your own charges and taxes.

It seems grey but I think technically in the eyes of employment law an AE is running a business in its own right and so the assumption would be that you have several clients.

Working for one person for too long puts you more in the realms of an employee. In this case the law would prefer that the company employing you should pay all of the charges. And you act as an employee on a salary with fixed hours and full employment protection rights.

As an AE you should be negotiating your hours and rates of pay like any sub contractor. They cannot give you a salaried contract, cdi cdd, etc as you are not salaried staff.

I say Grey because companies are getting away with this type of employment for the time being and can dismiss you as a subcontractor with no employement rights. I think though that there will be a crack down before long.


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Posted by Olivier06480 - 6 years ago

Slavery was banned from Europe a number of years ago. If you work, you need a contract.The law is simple: Either self-employed, or employee. Nothing in between. And if they "determine your working hours" then it implies there is a subordination, and therefore you are an employee. Restaurant and bar never checked, no contract (i.e. they can get rid of you on a whimp with no indemnities, you are not protected if you have an accident and can't work, etc.), they are not paying any social charges, AND you are asking what you should do ?
It is a joke, right ?
Tell them to try their luck avoiding the taxes in another European country, but not here !
Don't just walk away, or someone else will be in the same situation, with YOUR job. Many expats here think they can deal with foreigners the way they want, because foreigners themselves, whatever possible to avoid taxes and social protection. Anyone involved (From the British consul and all the way to the Chamber of commerce), it is starting to give a very bad reputation. Fair enough if you do baby sitting as a student for cash, but gardeners, tilers, plumbers, etc. without any registration IN FRANCE is illegal. This is why the vast majority of expats setting businesses here do it with full registration, all perfectly legal, in France. And they don't like at all to see their fellow countrymen dodging the law.
Now the question is: What should you do ? Where to report and what can happen to you ? Fired because you reported a fraud and an illegal business ? Fired yes, sure, but you will have indemnities. Anyone here on AI has a different view?