Within France, the loan of personnel is only authorized if it is done without making a profit. Ordinarily, it is rather rare for two companies not belonging to the same group to lend each other employees for free.

However, in the era of the coronavirus, the loan of personnel for free is encouraged in two situations:

• The employee is not on partial unemployment at the time of their loan:  The employee loaned continues to be paid by their employer at 100% of their salary.The employer reinvoices the host company the salary and social charges corresponding to the time spent by the employee at the host company, and therefore the host company bears in fine the cost of the employee from whom it benefits. In practice, it is sufficient to draw up a loan of personnel agreement between the two companies and an amendment to the employee’s employment contract that reflects their consent and the conditions of the work. Models are available on the labor ministry’s website. https://travail-emploi.gouv.fr/actualites/l-actualite-du-ministere/article/mise-a-disposition-temporaire-de-salaries-volontaires-entre-deux-entreprises

• The employee is already on partial unemployment at the time of their loan: The government has recently recommended the loan of an employee on partial unemployment to help priority sectors, notably the agricultural sector. In reality, this possibility already exists as a result of the provisions of the circular No. 2013-12 of July12, 2013 that provides that:

An employee on partial unemployment is authorized to occupy another position provided their employment contract does not include an exclusivity clause, in which case they cannot work for another company without their employer’s consent.

The work must take place in accordance with the principles of loyalty and non-competition.

The employee informs their employer of their decision to carry on a professional activity for another employer during the suspension of employment contract, and indicates the name of the employer and the provisional duration of the work.

Please note there is a textual ambiguity resulting from a clerical error, as confirmed by the Labor Ministry further to our question.  The Labor Ministry’s 2020 Questions/Answers, updated on April 3, on the exceptional system of partial activity, specify that the 2013 circular remains applicable in the current context except for the form 5 on the partial activity allowance. But the form 5 contains in Article 5.6 the possibility for an employee on partial unemployment to work for another company. To avoid any ambiguity, it would be advisable for the government to state expressly that Article 5.6 remains applicable, at the very least in the sectors defined as priority.

For the employee, this system is obviously more advantageous than the first since they benefit from both partial activity allowances and a salary paid by the host company.

Such legal mechanisms will allow fluid mutual assistance in sectors particularly in need at the present time.

Finally, to avoid any confusion, please recall that it is prohibited for an employee on work stoppage to continue to work for their own employer, as this would not be considered solidarity, but fraud.