It may happen that a person, an employee of a company, wishes:
- start your own business
- test a business idea;
- help a friend who starts his own business.
Therefore, is it possible for this person to carry out these two professional activities in parallel?
Chapter 1. The principle
In reality, there is no general principle of the type "it is forbidden to cumulate two jobs” .
The principle is therefore the freedom !
Nevertheless, in order to protect the employee and his employer, the legislator has set some limits to this freedom.
Chapter 2. The limits to this principle
Section 2.1. Loyalty
Therefore, the launch of a concurrent activity in parallel is prohibited (C. Cass. soc. January 28, 2014, No. 13-10518), since the mere registration of a company having a competing object does not constitute a fault in itself (C. Cass. soc. June 19, 2013, No. 12-19097)
In addition, the cumulative activity must not interfere with the initial employment (C. Cass. soc. December 6, 1979, No. 78-41248 ex. during his working time, it is advisable to get involved 100% for his employer: this is obvious, but it is better by saying it).
Section 2.2. Contractual exclusivity
It is also worth looking at his employment contract.
Indeed, this one can arrange the conditions of a plurality of employment, or even prohibit it simply. To be valid, the clause must (C. Cass.soc., September 15, 2010, No. 08-44640):
- be essential the protection of the legitimate interests of the enterprise;
- be justified by the task at hand;
- be proportionate the desired goal.
Thus a clause which has the effect of preventing the employee from having a professional activity outside his working time, including in sectors of activity unrelated to that of the employer, was ineligible for it (C. Cass.soc., September 15, 2010, No. 08-44640).
In addition, a clause providing for or prohibiting the accumulation of employment is prohibited in a part-time contract (C. Cass. soc. July 11, 2000, No. 98-43240in this case the judges decided that the exclusive dealing contract should be interpreted as a full-time contract).
Section 2.3. Working time and rest
This paragraph only concerns the accumulation of salaried jobs. Indeed, no legislation comes to settleuse"Your free time for other activities (such as running a business or others).
In addition, the law explicitly provides that certain activities may be carried out without any constraint on the maximum duration of working time (L8261-3 Labor Code):
- scientific, literary or artistic works and the contribution to works of general interest (in particular teaching, education or charitable purposes),
- work done on his own account or free of charge in the form of voluntary mutual assistance,
- small housework done at home for their personal needs,
- emergency work whose immediate execution is necessary to prevent impending accidents or to organize rescue measures.
2.3.2. Maximum duration of working time
- 10 h / d (L3121-34 Labor Code);
- 48 hours / week (L3121-35 Labor Code or 44 hours / week. averaged over a rolling window of 12 weeks, L3121-36 Labor Code).
In case of non-compliance with these rules, the sanction is:
- 1500€ for the employee (R8262-1 Labor Code together 131-13 Penal Code, or 3000 € in case of recidivism 132-11 Penal Code);
- 1500€ for the employer (R8262-2 Labor Code together 131-13 Penal Code, or 3000 € in case of recidivism 132-11 Penal Code).
If the employee exceeds the maximum authorized period, the employer must invite the employee in writing to abandon one of these contracts (C. Cass. Company, 9 December 1998, No. 96-41911): failing to abandon one of the employment contracts, the employer may dismiss his employee.
2.3.3. Minimal rest
In addition, the employee must respect the minimum rest period:
- 11 h / d consecutive (L3131-1 Labor Code, in short, the night);
- 35h / week. consecutive (L3132-2 Labor Code, in short the WE).
Section 2.4. Parental leave
If the employee takes a parental leave of education, it is not possible for him to exercise any professional activity (except maternal assistant, L1225-53 Labor Code).
Section 2.5. For civil servants
Civil servants (civil servants and non-incumbents) can not combine their position with a lucrative private activity (Article 25 of Law No 83-634 of 13 July 1983), except :
- if they have been authorized;
- if the cumulative activity is a public activity.
Chapter 3. Initial employer information
There is no legal requirement to notify his employer.
Nevertheless, if he comes to discover it, he can ask to protect himself (see the sanctions of the article R8262-2 Labor Code) a written certificate from his employee certifying that the maximum hours of work are not exceeded.
Refusal to give such an attestation to his employer constitutes a serious error which may lead to dismissal (C. Cass. Company, May 19, 2010, No. 09-40923).