How to start a business while in business?
The constitution of a company in parallel with a salaried activity is a project in which more and more French people are embarking. About two out of ten companies are created by active employees. Such a project is interesting, because it allows employees to increase their income while reconciling their job and their passion. Different legal devices exist today to help those who wish to take the plunge. What are the possibilities for salaried entrepreneurs? Do employees face restrictions when setting up their business? What about the employment contract?
CREATE YOUR BUSINESS AS AN EMPLOYEE: THE RESTRICTIONS
Venture into entrepreneurship as an active employee is now an accessible dream. The government has also chosen to establish a particularly favorable legal framework to help those who wish to embark on this adventure. However, legal restrictions exist.
THE EXCLUSIVITY CLAUSE
Long before realizing the entrepreneurial project that you are really passionate about and finding out about how to start a business , you must have the reflex to look at your current employment contract. In the event that it includes an exclusivity clause , the latter prevents you from exercising a professional activity outside of your employment as an employee. Exclusivity can be limited to any activity similar to that of the company in which you work, or extend to any type of business.
EMPLOYEE’S DUTY OF LOYALTY
Whether or not your employment contract contains an exclusivity clause (justified or not), you have an obligation of loyalty to your employer . This is of course an obligation inherent in any employment contract. That said, you cannot under any pretext create an entity that competes with the company in which you carry out a salaried activity and that harms its interests. When you fail to respect your duty of loyalty, your boss can act against you by dismissing you for misconduct. If you take the risk of competing unfairly, you may be sued for unfair competition.
BUILD YOUR BUSINESS BY BEING IN BUSINESS: THE POSSIBILITIES AVAILABLE TO EMPLOYEES
So that you can calmly realize your project, bet on the leave for creation or takeover of a company , the transition to part-time or the sabbatical leave .
This device allows you to leave your position for an extended period defined in advance . This is for a maximum of 12 months and is renewable for an additional year. However, it may be different if it is fixed by agreement or collective agreement. Throughout the duration of your leave, you will not receive any salary and your employment contract is suspended. At the end of it, you can return to your position in case your project has not taken the turn you expected.
In this case, you keep a reduced activity and are paid according to the time worked in the company. You carry out two activities simultaneously in timeshare. Here again, you are free to choose the duration during which you wish to work part-time, but within the limit of 12 months (renewable for an additional year) in the absence of a convention or collective agreement setting the maximum authorized duration.
THE PROCEDURES FOR OBTAINING LEAVE OR PART-TIME WORK
These two schemes are only intended for employees who have at least 24 months of seniority (consecutive or not) in the company, and who have not already benefited from them during the last 3 years. The seniority required may however be different if it is fixed by agreement or collective agreement. You are also required to inform your employer of the date on which you wish to go on leave or work part-time, as well as the planned duration. In the absence of a convention or collective agreement, this must be done at least 2 months before the desired date, by e-mail or registered letter.
WHAT ABOUT THE EMPLOYER’S RESPONSE?
After receiving your request, your employer has 30 days to respond to you by registered letter with acknowledgment of receipt or by letter delivered by hand against discharge. After this period, if he has not responded to your request, his endorsement is automatically considered acquired.
WHAT IS THE SABBATICAL LEAVE?
The sabbatical leave is also a device allowing you to prepare an entrepreneurial project without breaking your employment contract. As soon as it is effective, your contract is suspended (in the same way as in the context of leave for the creation or takeover of a business) and with the same consequences (zero salary, etc.). In the absence of an agreement or collective agreement, its duration is 6 to 11 months , without the possibility of renewal.
To benefit from the sabbatical leave, you must have a minimum seniority of 3 years in the company, and justify a professional activity of at least 6 years. In addition, you must not have benefited from such leave during the previous 6 years, or even from creation/takeover leave. The request must be made at least 3 months before the planned departure date. The employer can accept it, refuse it or postpone your departure within the limit of 9 months.
WHAT AID CAN CREATIVE EMPLOYEES CLAIM?
The financial plan is undoubtedly of paramount importance for any employee who wants to start a business without breaking his employment contract. Fortunately, there are currently a multitude of aids intended for this creator profile. Some take the form of social and tax reductions while others maintain certain allowances. Among the most requested aids are: