Posted on 05/30/2021 at 12:08 p.m.
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Paid or not, the husband of a trader who works in the company does not necessarily provide family assistance and must sometimes be declared like any employee. The interest of this husband for the proper functioning of the family business and his link with the manager through a community of life are not enough to allow him to work there without being declared, judge the Court of Cassation.
The example
The judges were looking at a recovery from Urssaf notified to a baker who only partially declared the hours spent daily in the shop by his wife. The baker had signed an employment contract with her for part of his hours and for the rest he invoked family life and mutual aid.
But mutual aid presupposes occasional help, the independence of the person who helps and his non-replacement in the event of absence, according to case law, which means that mutual aid should not be lasting or permanent, even if it is not is not remunerated, nor relate to tasks essential to the functioning of the company.
If these are essential tasks, observed Urssaf, family volunteering is necessarily excluded. And if these conditions of mutual assistance are not met, there is an employment contract. The existence of a contract does not depend on the choices of the participants but on the practical methods of carrying out the work, the Court often recalls.
The wife, however, did not demand payment for all her hours and the unpaid hours should not generate contributions to the Urssaf, argued the baker. But his arguments were rejected.
What the law says
When the work does not meet the strict criteria for self-help, all hours must be paid and declared, whether or not a family member is involved and even if he is working on a voluntary basis. Otherwise, the offense of concealed work can be constituted.
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