The canton of Geneva alone accounts for 26% of the domestic total of active cross-border commuters. If in the third quarter of 2018, the National Office of Statistics noted a slight decline (-0.4%) compared to the same quarter a year earlier, it still corresponds to 81,226 people in September 2018.
However, as an accounting firm specialized in accounting and HR outsourcing, we regularly observe that the legislation concerning the recruitment of French cross-border workers in the Canton of Geneva is not well known. In this article, we provide an update on what you need to know as a Swiss company to recruit from across the border.
As the Swiss people refused entry into the European Economic Area in 1992, the Swiss Federal Council decided in 1993 to negotiate bilateral agreements in favor of a sectoral approach in its relations with the European Union. The Free Movement of Persons Agreement (Accord de Libre Circulation des personnes) entered into force in June 2002 and the legislation has been put in place in stages for 12 years and has been effective since 2014.
This agreement applies to Swiss and European citizens (except Croatia, which is a special case) and has made it possible, among other things, to simplify the employment and life of cross-border workers in Switzerland by abolishing quotas for permits B and L, determined border areas, priority to local workers, need for work authorization for contracts or benefits of less than 90 days.
The term "cross-border worker" applies to a person who carries out an independent or employed occupational activity in Switzerland and returns at least once a week to his home. Thanks to the Free Movement of Persons Agreement, any Swiss or French cross-border worker living in a European Union country can work in Switzerland. Once an employment contract is signed, this employee will automatically obtain a work permit.
In the same way, this agreement allows the Swiss to settle in France, to work there or to be cross-border workers of Swiss nationality.
However, some administrative formalities remain indispensable:
- If the employment contract is less than or equal to 90 days per calendar year: As an EU / EFTA national, no work permit is required. But whether it is a trainee or an employee, the company must announce him/her to the Cantonal Office of Population (Office Cantonal de la Population et des Migrations). The announcement can be done online and is free of charge. After 24 hours, the company will receive an acknowledgment of receipt and then, approximately 8 days later, a final authorization email.
- If the work contract exceeds 90 days per calendar year: it will be necessary to apply for a work permit, ie a G permit for cross-border workers. In this end, the company will have to send to the Cantonal Office of the population of the Canton of Geneva the following documents:
As a European employee, the authorization will be granted; the worker can start working as soon as the application is recorded with the OCPM.
Illustration : Le Temps 2016
Since the introduction of several European regulations (CE 883/2004 and CE 987/2009) based on the Agreement on Free Movement, in some cases the Swiss employer may be required to pay all the social charges of the staff concerned in France at the French scale (3 or even 4 times higher than the Swiss one). These texts apply to employees domiciled in France who, in parallel with their employment in Switzerland, carry out part of their activity in France (part-time or homeoffice).
Which are the cases where a cross-border worker has to be declared in France?
The full salary of a cross-border worker is exclusively subject to the French social security charges if he/she carries out 25% or more of his/her activity in France, whether:
In case of refusal, the Swiss employer will be affiliated by the CPAM (French primary health insurance fund) with retroactive effect since the beginning of the contract concluded between the company and the cross-border worker
A problem can also occurs in case of an accident. Indeed, if the employee is affiliated in Switzerland and the insurance realizes that the accident occurred while the employee was working from home, the insurance will redirect you to the French administrations to which you have not contributed... You and your employee will therefore be in a delicate situation where nobody will cover the costs related to the accident. Be aware that Swiss insurances can even go as far as investigating the IP address of the employee to discover the truth.
This is why it is important to anticipate these situations during recruitment and ask your future employee if he/she is already employed in France or in another EU country. Some companies specify in the employment contract that the employee must declare any new activity or ask the employee to commit to not work in parallel with his/her job in Switzerland. In the same way, a company has to agree on the time allowed for home office not exceeding 25%.
In February 2014, the people voted to limit immigration. In July 2018, a law was introduced obliging employers to file vacant positions first and foremost with the Regional Placement Offices (ORP) if the occupation concerned reached a certain unemployment rate in the canton, in order to give priority to local workers. However, the Cross-Border Group (Groupement transfrontalier) relied on the contradiction of this directive with the Free Movement of Persons Agreement to ask the President of the Confederation and SECO (State Secretariat for Economic Affairs) for a clear position.
Their replies stated that a fired cross-border worker is at the same level as his fellow Swiss resident. Thus, even if France compensates an unemployed cross-border worker, he/she can still register with the cantonal ORP to benefit from the same services as a Swiss, including access to jobs. A Swiss company can therefore safely recruit a cross-border worker.
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