The law of 5 September 2018 for the freedom to choose one's professional future provides for the opening of unemployment insurance for departing employees and the creation of an allowance for the self-employed.
The decree implementing this law was published in the Official Journal on July 26, 2019.
This is Decree No. 2019-796 on new rights to compensation, various measures relating to unemployed workers and the experimentation of a job search newspaper, which will enter into force on 1 November 2019.
This article summarizes the compensation rules for departing employees and self-employed workers contained in this decree.
More specifically, in the context of the opening of unemployment insurance to departing employees, the decree sets the criteria according to which the real and serious nature of the project is attested by the regional inter-professional joint committees, the procedural modalities of this examination and the penalties applicable in case of insufficient steps to implement the professional project (1).
In the framework of the creation of the self-employed allowance, it determines the conditions of resources, previous duration of activity and previous income from activity to which the right to this allowance is subject (2).
1) Opening of unemployment insurance for resigning employees (Article 1 of Decree No. 2019-796).
Employees who resign are entitled to the unemployment insurance allowance if they satisfy specific prior conditions of activity and pursue a career retraining project requiring training or a project to create or take over a job. business.
This project must have a real and serious character attested by the regional inter-professional joint committee.
1.1) Criteria for assessing the real and serious nature of the professional project.
In concrete terms, the employee must send his application for certification of the real and serious nature of the professional project to the regional inter-professional joint committee to which he reports (according to his principal place of residence or place of work).
An order of the Minister responsible for employment specifies the content of the application for certification and the list of supporting documents to be sent by the employee.
This request is admissible when the employee has not resigned from his job prior to the request for advice in progress.
The regional inter-professional joint committee will then be able to examine the employee's file and decide on the real and serious nature of his career plan.
The criteria for assessing real and seriousness vary according to the nature of the projects.
For vocational retraining projects requiring training follow-up, the application is examined according to the following cumulative criteria:
• consistency of the conversion project and identification of the characteristics of the desired occupation;
• relevance of the training identified and the financing arrangements envisaged;
• employment prospects at the end of the training.
For business start-up or take-over projects, the application is reviewed against the following cumulative criteria:
• identification by the employee of the characteristics and business prospects of the business market to be created or resumed;
• identification by the employee of the financing needs and financial resources of the company to be created or resumed;
• identification by the employee of the technical and human resources of the company to be created or taken back.
1.2) Procedural modalities of the decision made by the joint committee.
Once the examination is completed, the regional inter-professional joint committee notifies the employee of its decision.
a) Refusal to attest to the real and serious nature of the professional project.
In case of refusal to attest to the real and serious nature of the professional project, the commission informs the employee of the reasons on which this decision is based.
It also informs it of the possibility of appealing against this decision within two months of its notification.
The decision taken on the graceful appeal is notified to the employee. In case of confirmation of the refusal to attest to the real and serious nature of the professional project, it is motivated.
b) Certification of the real and serious nature of the professional project.
In the event of certification by the regional inter-professional joint committee of the real and serious nature of his professional project, the employee has six months from the notification of the decision to file a request for an allowance with Pôle emploi. unemployment insurance.
1.3) Sanctions applicable in case of insufficient steps to implement the professional project.
The reality of the steps taken to implement the career plan is monitored by Pôle emploi at the latest at the end of a period of six months following the opening of the right to the insurance allowance.
The person who can not justify, without legitimate reason, the reality of these steps is removed from the list of jobseekers. The insurance allowance ceases to be due.
2) Creation of the allocation of self-employed workers (Article 2 of Decree No. 2019-796).
The right to self-employment benefits is subject to a number of conditions. The decree also fixes the amount and the duration of allocation of this allowance
2.1) Conditions of allocation of the self-employed allowance.
To benefit from the self-employed allowance, they must:
• justify a self-employed activity for a minimum uninterrupted period of two years in respect of one and the same company, the term of which is a judicial winding-up judgment or, under certain conditions, a judicial reorganization procedure;
• to actually be looking for a job;
• justify, in respect of their self-employed activity, previous earnings of activity equal to or greater than 10,000 euros per year.
The condition of previous income from activity is assessed on the basis of the average income that has been the subject of the last two tax returns, each corresponding to a full year of activity.
When a single tax return corresponding to a full year of activity is available, the condition of previous income from activity is assessed on the basis of the income covered by this declaration.
When no tax declaration corresponding to a full year of activity is available, the condition of previous income from activity is assessed on the basis of the income covered by the last tax return, recalculated to correspond to one year. complete activity;
• justify resources below a monthly ceiling corresponding to the monthly lump sum referred to in Article L. 262-2 of the Social Action and Family Code applicable to a home made up of a single person.
The resources taken into account for the application of this ceiling include all the resources of the person concerned as they must be declared to the tax authorities for the calculation of the income tax before deduction of the various allowances, with the exception of reported income for self-employment, insurance allowance and special solidarity allowance.
The amount taken into account is one-twelfth of the total resources received during the twelve months preceding the one in which the application was submitted.
Lastly, the end of self-employed activity taken into account for the opening of entitlements to the allocation of self-employed workers must be within 12 months, the end of which is the day before the registration as a jobseeker or where applicable, the first day of the month in which the application for the allowance was made.
To read the Article in French, click on the link below.
Frédéric CHHUM, avocat et member of the Paris Bar Council (conseil de l’ordre)
CHHUM AVOCATS (Paris, Nantes, Lille)
.Paris: 4 rue Bayard 75008 Paris tel: 0142560300
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.Lille: 25, rue Gounod 59000 Lille tel: 0320135083