Patchwork Avocats

Practical Guide to Independent Home Salesman 2023

Patchwork Avocats — Tue, 07 Mar 2023 14:46:13 +0000

The 2023 edition of the Practical Guide for Independent Home Salesmen – VDI – is finally out !
Partners of the Direct Sales Federation and experts in the field of Direct Sales, Stéphanie Ropars and Laurent Moreuil of Patchwork Avocats have once again contributed to the writing of the Practical Guide of the Independent Home Salesman – VDI.

The status of Independent Home Salesman

The VDI’s activity is the sale of products or services directly to individuals (for example in the context of “door to door” sales or sales in meetings). The status of the VDI, which is still relatively unknown, is original in that although they are not employees, they contribute to the general social security system and the company giving the orders deducts and pays social security contributions directly, just like an employee.

Patchwork Avocats, a firm dedicated to business law, assists companies that use “workers” in the broadest sense of the term, and therefore companies in the direct sales sector (drafting of contracts, commercial documents, general sales conditions, management of the distribution network, unfair competition, etc.).

Do not hesitate to ask us about this distribution channel and the VDI status!

Pour commander le Guide Pratique du VDI 2023

Photo Novel Patchwork: Special New Year

Patchwork Avocats — Tue, 03 Jan 2023 16:29:37 +0000

PATCHWORK Avocats wishes you a very happy new year 2023!

Pay attention to the timing when announcing a layoff!

Patchwork Avocats — Thu, 03 Nov 2022 10:56:36 +0000

To dismiss an employee, you must follow a specific procedure involving, among other things, a period known as the “reflection period” 2 working days between the date of the preliminary interview and the date of sending the dismissal letter.

In theory

during this so-called “reflection” period, no decision can be announced to the employee.

In practice

Compliance with this deadline is difficult because the employer may want, out of respect for the employee, or quite simply for practical reasons, to inform the latter or his teams, of his dismissal, in particular when this termination is exclusive of notice (because it is the date of sending of the letter which materializes the date of dismissal).

Attention !

However, even when the company is small, and the intention is laudable, announcing orally to the employee the decision that has been made before sending the dismissal letter is always a risky practice.

Indeed, the dismissal announced in advance can be qualified as verbal dismissal, necessarily irregular and without real and serious cause, allowing the employee to seek damages.

Recent practical application

An employer had sent the employee a dismissal letter on November 15. At the same time, he had telephoned the person concerned to inform him of the dismissal and to tell him that he should not report to the office the next day. The letter was received on November 16.

The employee invoked a verbal dismissal and had been followed in his argument by the Court of Appeal.

The Court of Cassation, hearing the dispute, recalled that the Court of Appeal should have investigated whether the letter of dismissal had been sent:

before the phone call → legal procedure followed
or after the telephone conversation → irregular verbal dismissal without real and serious cause

This decision is a reminder of good reflexes in this area:

Always send the dismissal letter by registered mail
Keep the time-stamped receipt from La Poste and
If the dismissal must be announced to the employee, his colleagues or clients, make sure that this announcement takes place after the letter of dismissal has been sent

The progressive retirement scheme: an interesting end-of-career HR tool

Patchwork Avocats — Tue, 11 Oct 2022 11:54:59 +0000

Progressive retirement allows the employee to switch to part-time and receive all or part of his retirement pension (basic and supplementary pension). He continues to contribute and to accumulate rights and quarters, which will be accounted for when his pension is finally settled.

What are the conditions for benefiting from progressive retirement:

have reached the legal retirement age reduced by two years, without being able to be under 60;
prove of a duration of insurance and recognized equivalent periods of up to 150 quarters under the general scheme and, where applicable, under one or more other compulsory schemes;
justify a proportion of working time that cannot be less than 40% and more than 80% of the full time applicable within the company.

How to set it up:

An application form for progressive retirement must be completed by the employee, accompanied by supporting documents (in particular the new part-time employment contract concluded with the employer) and sent to the administration.

What’s the point?

Eligible employees can reduce their working hours and receive, in return, a fraction of their old-age pension (between 20% and 60% of the old-age pension, depending on the reduction in work applied , which can range from 80 to 60% of the working time applicable in the company).

Note: progressive retirement is also open, since April 26, 2022, to employees benefiting from a fixed-day agreement

34th Congress of the Direct Selling Federation

Patchwork Avocats — Wed, 25 May 2022 12:52:12 +0000

The 34th congress of the Direct Selling Federation was held at the “Palais des Congrès” in Bordeaux on May 17 and 18, 2022.

An exceptional setting for an annual event which is just as exceptional, all the partners and member companies of the FVD came together to discuss an ever-growing sector of activity.

Highlight of this 2022 edition, the FVD unveiled a series of videos made to raise awareness of this distribution channel, which is often the victim of prejudice.

A partner of the FVD for 15 years, Patchwork Avocats, represented by Stéphanie Ropars, took part in this unmissable event alongside Julie Galophe from F.-M. Richard & Associates.

– Website of the FVD congress

Julie Galophe, Stéphanie Ropars & Alexandrine Boulard

Damien Fresne, Hélène Fresne, Stéphanie Ropars & Julie Galophe

European Direct Selling Conference – 8th edition

Patchwork Avocats — Mon, 16 May 2022 10:53:43 +0000

Organized by Seldia, the European Direct Selling Association, the “Infinite Evolution” conference took place on May 10 and 11, 2022 at the Steingenberger Wiltcher hotel in central Brussels.

Hosted by company executives, project managers, members of the European Parliament or digital experts from all over the world, this unmissable Direct Selling meeting offered over 2 days of multiple debates, interspersed with cocktails and dinners in a luxurious setting of the Belgian capital.

On the program of the “EuropeanDSC2022“:
– The endless evolution of Direct Selling (key takeaways from the last two years and goals for the future)
– The evolution of entrepreneurs and entrepreneurship
– How to lead and thrive in times of crisis
– The new consumer experience (CX) in digital purchases
– The evolution of policies on privacy and data flows
– The evolution of compliance needs and technologies
– Reinvent success indicators

It’s with Julie Galophe by F.-M. Richard & Associates that Stéphanie Ropars of the firm Patchwork went to this 8th edition of a particularly successful European Conference on Direct Selling.

The Seldia website

The EuropeanDSC2022 program

Julie Galophe & Stephanie Ropars

Modification of the rules applicable to the Occupational Single Risk Assessment Document (DUERP)

Patchwork Avocats — Thu, 31 Mar 2022 14:02:53 +0000

Entry into force of the decree amending the rules applicable to the Single Risk Assessment Document – DUERP

As a reminder, the DUERP is a mandatory document related to the prevention of health risks (physical and mental) and the safety at work of workers. No form is imposed for the DUERP but it must include an inventory of dangers, that is to say situations that can potentially be dangerous, and a inventory of risks< /strong>, ie an analysis of the conditions of exposure of employees to hazards.

The decree of March 18, 2022, which comes into force on March 31, 2022, significantly modifies the rules applicable to the DUERP.

So, in summary:

No more obligation to update annually the DUERP in companies with less than 11 employees (but be careful all the same this update remains mandatory in the event of a major development decision modifying the conditions of health and safety or working conditions)

Widening of access to the DUERP: it must from now on be accessible to former employees of the company for the versions in force when they were in office, and to the entire prevention and occupational health (SPST). Access to the DUERP is therefore no longer limited to occupational physicians and SPST health professionals, but will be extended to workers in the prevention of occupational risks (ergonomist, toxicologist, etc.)

Obligation to file electronically on a digital portal as of July 1, 2023 for companies with 150 or more employees; July 1, 2024 for the others. Until this filing obligation, companies must keep the successive versions of the DUERP on paper or electronic media.

Obligation for all companies to plan preventive actions, or even (for companies with 50 or more employees) an annual occupational risk prevention program and improvement of working conditions (PAPRIPACT). In companies with less than 50 employees, the DUERP must lead to the definition of risk prevention and employee protection actions.

The DUERP is essential to ensure the protection of the health and safety of employees.
Failing to establish or update it when necessary exposes the company:

to criminal sanctions, but also
recognition, in the event of an accident at work or occupational disease, of an inexcusable fault involving the condemnation of the company to compensate the victim or his heirs.

It is therefore extremely important to establish a DUERP, regardless of the size of the company, and to comply with the new provisions mentioned above.

Pay attention to the drafting of annual appraisal interview reports

Patchwork Avocats — Tue, 01 Mar 2022 09:17:12 +0000

The sprinkler sprinkled! Pay attention to the drafting of the annual appraisal interview report

In the event of dismissal of an employee for fault, it is preferable to have written documents (emails, certificates, etc.) demonstrating the reality of the fault. Indeed, if the employee contests his dismissal, the employer must be able to prove the validity of this measure.

However, there are not always written documents and it can be tempting for the employer to “prepare the ground” during the annual evaluation interview by mentioning at that time faults committed in order to prepare a written record of these breaches.

A writing addressing reproaches to the employee can be reclassified as a warning

A recent decision of the Social Chamber of the Court of Cassation (n° 20-13-833 of February 2, 20222) calls for the greatest caution, however, by recalling that any writing addressing reproaches to the employee and inviting him in a threatening manner to change his behavior, can be reclassified as Warning.

This is valid for a mail, an email, a sms, and, as the social chamber, an annual evaluation interview report.

However, the same wrongful act cannot be sanctioned twice, the dismissal pronounced for the same facts as those stated in the annual interview report is without real and serious cause, except that the facts recur.

More seriously, if the annual maintenance report is written in the manner of a warning, it will prevent the employer from taking advantage of any wrongful act prior to this interview, since it has been judged that the employer must, when he notifies a warning, state all the faulty facts of which he is aware on that date. Failing this, he exhausts his disciplinary powers for acts that are not covered by the warning and can no longer sanction them.

Be careful therefore, before recording in writing the fault committed by an employee, to the objective pursued. If the misconduct is significant or recurrent enough to be sanctioned, it may be preferable to immediately initiate a dismissal procedure (unless there is a contractual obligation to precede this dismissal with several warnings).

Non-competition clause in the event of contractual termination

Patchwork Avocats — Tue, 15 Feb 2022 10:36:46 +0000

Beware of the deadline for lifting a non-competition clause
in the event of contractual termination

A non-competition clause is a clause which prohibits an employee, after the termination of his employment contract, from working in a competing company.

To be valid, the non-competition clause must be provided in writing and meet several conditions of validity, including the payment of financial compensation.

To be exempted from the payment of this consideration, it is possible to lift the prohibition of competition if the contract provides for it, i.e. to write to the employee that he is ultimately not bound by the clause .

This possibility for the employer to lift the non-competition clause is governed by increasingly strict deadlines, to limit the uncertainty in which the employee finds himself as to his possibility of accepting a competing job.

Judgment no. 20-15.755 of the Social Chamber of the Court of Cassation

In a very recent decision, the Social Chamber of the Court of Cassation ruled that independently of the clauses of the contract or the collective agreement, the non-competition clause must be lifted no later than the date of termination of the contract provided for in the conventional termination form.

This decision is in line with the logic of the Social Chamber, which also judges that when an employee is dismissed for serious misconduct, the non-competition clause must be lifted at the latest when the employee actually leaves.

Be careful therefore to respect this strict deadline to lift a non-competition clause, failing which, the clause will be applicable and must be remunerated until its term, unless the parties agree.

Happy New Year 2022

Patchwork Avocats — Fri, 07 Jan 2022 06:51:26 +0000

Patchwork Lawyers’ team wishes you a Happy New Year 2022!