By law, there is nothing to prevent a micro-entrepreneur from working for a company, provided that the employment relationship scrupulously complies with the rules governing micro-enterprise status. This guide explains in detail the various possibilities and precautions you need to take to avoid being accused of disguised salaried employment and thus occasionally employing a micro-entrepreneur.
What is a micro-entrepreneur?
Micro-entrepreneurs are self-employed. They carry out an activity on their own behalf. There is therefore no relationship of subordination between them and their customers during the performance of their services.
This status confers advantages, but also obligations. For example, they must draw up an invoice, whether they are working for a private individual or a professional. This document must include his identity, his SIREN number, the precise name of the service he has provided, the date of its completion, and the words "TVA non applicable, article 293 B du CGI" ("VAT not applicable, article 293 B of the CGI") in the case of basic exemption, or the applicable VAT rate and the amount of VAT invoiced.
Why use a micro-entrepreneur?
Employing a micro-entrepreneur has the advantage of costing the company half as much as employing a salaried employee, due to the compulsory social security contributions. In fact, this saving is often the main reason why a company decides to employ a micro-entrepreneur. However, as the outsourcing of employees is becoming increasingly widespread, the authorities are taking care to ensure that one-off assignments do not conceal a disguised form of salaried employment.
What is disguised salaried employment?
It can take several forms:
- offer employees on permanent contracts the opportunity of a more advantageous contract with the status of micro-entrepreneur;
- employing a full-time micro-entrepreneur ;
- carry out a trial period of several months in the form of a service contract as a micro-entrepreneur.
What are the consequences of disguised salaried employment for the company?
These practices constitute fraudulent concealed work under article L8221-5 of the French Labor Code. They carry heavy penalties for the employer:
On the criminal front
Requalification of the service as an employment contract (CDD or CDI), a penalty of 3 years' imprisonment and a fine of up to €225,000 for a legal entity. In addition, the company may be required to pay the social security contributions and wages corresponding to the position held by the micro-entrepreneur, from the start of the service.
On the administrative front
Withdrawal of employment subsidies, ban on access to public contracts and vocational training, for up to 5 years.
What rights does a micro-entrepreneur have in the event of disguised salaried employment?
He can obtain compensation equivalent to 6 months' salary, as well as conventional redundancy pay.
How can I legally employ a micro-entrepreneur?
To avoid the risk of disguised salaried employment, it is essential that the micro-entrepreneur meets all the following criteria:
- They have no subordinate relationship with the company.
- Flexible working hours.
- He is not required to report on a regular basis.
- He is remunerated for each service he provides.
- He uses his own tools to carry out his mission.
- He has other customers (he can have just one customer if he is just starting out as a micro-entrepreneur, or if the assignment is long-term).
- He continues to prospect for new customers.
- He is not a former employee of the company.
If the micro-entrepreneur you wish to hire meets all these recommendations, all that's left to do is choose the type of service contract best suited to the task in hand.
What type of contract should I choose to employ a micro-entrepreneur?
Fixed-term contracts (CDD)
This is possible, as the law allows micro-entrepreneurs to combine their status with that of salaried employee. However, it is essential that :
- his self-employed activity is carried out only outside company working hours;
- the latter scrupulously respects the limits of her employment contract;
- he does not work for one of the employing company's customers without prior agreement.
The subcontract
This is the most secure option, as the micro-entrepreneur retains his or her status as a self-employed worker. The contract must specify :
- the identity of both parties (the service provider being the micro-entrepreneur and the customer, the company);
- the exact nature of the service ;
- duration of assignment (with start and end dates) ;
- the obligations of both parties ;
- the price agreed for the mission;
- the means that will be used to carry it out.
This document must be dated and signed by both the company and the micro-entrepreneur.
Finally, a company that hires a micro-entrepreneur must carry out certain checks. Article D8222-5 stipulates that the subcontractor must present "a certificate of provision of social declarations issued by the social protection body responsible for collecting the social contributions incumbent on the co-contractor and dating back less than six months".