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Recently, several cases of bogus managers have been brought before the industrial tribunal. These managers had, in fact, employee status. What are the specifics of the position of manager? How to make the difference with the status of employee?
What does the position of manager entail?
The manager is the person in charge of a point of sale, that is to say a branch with its own clientele, such as, for example, a mini-market. Two statuses are provided for in the labor code: the status of salaried manager and the status of non-salaried manager of branches in the food sector. In these two cases, they do not benefit from the full protection of labor law.
The managers most often operate within the framework of economic dependence vis-à-vis the large distribution groups. The essential difference with an ordinary employee is that they may be responsible for an inventory deficit, or even a management deficit, depending on their status. As this situation can be advantageous for companies, some of them create “false manager” statuses in order to be able to combine the advantages of the economic responsibility of the manager and, at the same time, a control of the activity, specific to the
salariat. What does the manager’s responsibility entail?
The responsibility for management deficit and inventory deficit is financial, and impacts the manager’s remuneration. The company may eventually ask to be reimbursed for this management or inventory deficit.
The difference between the status of salaried and non-salaried manager is important since the financial responsibility of the salaried manager is limited, and this responsibility cannot impact his remuneration below the minimum wage, unlike the non-salaried manager who will not benefit from this limit. The non-salaried manager must also be remunerated only in the form of discounts proportional to the amount of sales. In addition, salaried managers are subject to more checks on working conditions than non-salaried managers.
Can one be requalified as an employee?
The industrial tribunal has been seized several times for requests to reclassify the management contract as an ordinary employment contract when certain managers realized that they were combining the disadvantages of the manager’s economic responsibility and the working conditions which were those of an employee.
To have his management contract reclassified as an employment contract, the manager must establish the existence of a relationship of subordination vis-à-vis the company. This link will be established by a set of clues that characterize salaried work: this is the case if it receives directives from the company or if the latter carries out checks or imposes working hours constraints. It is on the basis of these constraints imposed by the company on the manager that the industrial tribunal judges base themselves on accepting or refusing the requalification of the management contract into a classic employee employment contract.
How to properly prepare your file?
You must prepare your file well and gather the necessary evidence. It is recommended to keep and collect the working documents which make it possible to prove the reality of the relationship of subordination. This can be, for example, e-mails proving the guidelines, letters or memos. Testimonials are also recommended to prove, for example, time constraints. They must be drafted by integrating the mandatory information provided for by the code of civil procedure. They have probative force, especially if they are precise and detailed.
DAMY Law Firm , Nice, Update 2022
