Individual Training Entitlement : DIF

The persons eligible for the DIF are as follows :
• Permanent employees with at least one year of service in the company. They are eligible whether they are full-time or part-time employees. In the latter case however, the amount of training time acquired under the DIF is calculated in proportion to the working time.

Regarding the calculation of the acquired rights under the DIF, the period of absence of the employee for a maternity leave, an adoption leave, a parental presence leave or child-care leave is fully taken into account.

• • Employees under a fixed-term contract (see below “Provisions specific to fixed-term contract employees”).

However, apprentices and employees under a professional training contract are not eligible for the DIF.

Under the DIF, full-time permanent employees are granted a minimum of 20 training hours per year, except in the case of more favorable contractual stipulations. Part-time employees are granted an amount of training hours calculated in proportion to their working time. For example, a half-time employee will be granted 10 training hours per year.

Permanent employees who do not use their rights acquired under the DIF may combine them from one year to the next, under the following conditions:

• full-time employees may combine their rights over a maximum of six years and the total amount of training hours may not exceed 120 hours ;

• The 120-hour limit applies to part-time employees regardless of the time it takes them to reach it. For example, employees working half-time acquiring 10 hours per year under the DIF may combine their rights over 12 years.

A full-time employee who has not used his rights for 6 years and thus has reached to 120-hour limit may not, except in the case of more favorable contractual stipulations, be granted training rights under the DIF.
Any training activity performed within the DIF is to be counted off the acquired amount of hours. For example, an employee who had reached the 120-hour limit falls back to 80 if he undertakes a 40-hour training course. He may then acquire rights again within the 120-hour limit.

The employer must inform each employee, in writing and on a yearly basis, of the total amount of training hours they are entitled to under the DIF.

The implementation of the DIF rests on the employee’s own initiative, who agrees upon it with the employer.

• Requestfrom the employee
The law does not specify the terms of the request. It would make sense to file the request in writing and specify any information necessary for the employer to take a decision regarding the request (considered training course, duration…). There is no statutory deadline to file the request, but the employee must give the employer sufficient notice, as the employer has a one-month period to reply. In addition, collective agreements may provide deadlines to file the request.
• Replyfrom the employer
The employer must agree to the choice of training activity. He has a one-month period to reply to the employee who has requested his agreement in order to benefit from the employee’s rights under the DIF. Should the employer fail to reply within the deadline, he is deemed to have agreed to the choice of training activity offered by the employee.
To avoid any dispute regarding the deadlines, it may be preferable for the employee to send the request by registered letter with an acknowledgement of receipt.

Should the employer refuse, the employee has no way of recourse other than to make another request at a later date (there are, however, specific provisions in case of termination of the employment contract, see below). If there is still a disagreement after two consecutive fiscal years, the employee may file the request as educational leave (CIF). The equi-representational management committee of the CIF under which the company falls must first review in prority this request provided that the training course the employee has chosen matches the priorities and criteria set by the committee. Should the requested be accepted, the employer must pay the committee a sum that is equal to the amount of the training allocation in relation to the rights acquired by the employee under the DIF and to the training fees, which are applied on the fixed basis applied to professionalization contracts. The duration of the training course taken under these conditions is substracted from the amount of hours acquired under the DIF.

• Choosing a training course
High priority training activities can be defined through collective company agreements, branch or inter-branch agreements. The employee may then choose one of them, but it is not mandatory for him to do so.
In the absence of such an agreement, the training activities available under the DIF are advancement activities (that allow for a higher level of qualification), or activities that aim at acquiring, maintaining or refining knowledge.
The choice of the training activity undertaken under the DIF must be settled in a written agreement between the employee and the employer.

Training under the DIF takes place outside working hours. However, a collective branch agreement may provide that the training activity will take place in part during working hours.

For the training hours outside working hours, the employee is paid by the employer a training allocation equal to 50% of the net reference pay. The hourly reference wage taken into account in the calculation of this allocation is equal to the total of the net wages paid to the employee during the last 12 months prior to the beginning of the training divided by the total amount of paid hours during the same last 12 months. Specific terms for calculations are provided for employees whose work duration is set by a flat-rate pay agreement and counted in days.

If the training partly takes place during working hours, the employee's wages are maintained normally for the hours spent training.

During the training period (during or outside working hours), the employee benefits from the laws regarding work accidents and occupational diseases.

Training fees, as well as the training allocation, rest upon the employer, who may count them as his participation to the development of continuous training.

What happens to acquired rights when the employment contract is terminated?

Positive law was modified lastly by the reference law of November 24th, 2009.

  Using the DIF during the notice period
In the case of a dismissal for severe misconduct, and if the employee requests it prior to the end of the notice period, the sum corresponding to the amount of unused hours acquired under the DIF multiplied by the fixed amount as set forth by Article L.6332-14 paragraph 2 of the French Labor Code (as of this date, 9.15 €), allows to cover part or the entirety of an activity of skills assessment, validation of prior experience or training. Should the employee fail to file such a request, the sum is not owed by the employer. When the aforementioned activity is realized during the notice period, it takes place during working hours.

The terms for implementing the measures aiming at carrying over the rights acquired under the DIF raise an issue in the case of a dismissal for serious misconduct: since such a misconduct the employee of the notice period, it would become impossible for the employee to file the request under the conditons mentioned above, even though he is entitled to the DIF. In order to avoid this detrimental situation to the employee, a departmental response (JOAN, February 1st, 2011) advises to "grant the request of the employee if it is filed during a period of time equal to that of the notice period that would have applied had he not been dismissed for serious misconduct".

  Using the DIF after the employment contract was terminated
In the case of a termination of the employment contract that does not follow a severe misconduct or if the employment contract expires in circumstances which grant the employee the right to benefit from the unemployment system (dismissal, resignation on grounds deemed valid by the unemployment system, contractual termination of permanent employment or end of the fixed-term employment contract, etc.), the sum corresponding to the amount of unused hours acquired under the DIF multiplied by the fixed amount as set forth by Article L.6332-14 paragraph 2 of the French Labor Code (as of this date, 9.15 €) is used, depending on the case, either while working for the new employer, or during the unemployment period.

• Using the DIF while working for the new employer
When the employee requests it to a new employer, during the 2 years following his hiring, the sum allows to pay, after the employer agrees to it, either for part or the entirety of an activity of skills assessment, validation of prior experience or training, or, with no agreement from the employer being required, for part or the entirety of an activity of skills assessment, validation of prior experience or training in relation with the priorities defined by branch or company agreement. When the employee and the employer are in disagreement, the activity takes place outside working hours and the training allocation (as defined by Article L.6321-10 of the French Labor Code) is not owed by the employer.
Payment of the sum is made by the accredited collecting fund for training (OPCA) the company in which the employee is hired pertains to. The sum is paid under the "professionalization" section, unless specifically provided otherwise by a branch agreement or a collective agreement between employer and employee organizations having signed an agreement establishing an approved interprofessional OPCA.
• Using the DIF during the unemployment period When the job seeker requests it, the unused amount acquired under the DIF allows to pay for part or the entirety of an activity of skills assessment, validation of prior experience or training. This amount is drawn on primarily during the period during which the job seeker is under the regime of the unemployment system, and after the person in charge of accompanying the job seeker has expressed their opinion.
The sum is paid by the OCPA the last company in which the employee acquired rights pertains to. The sum is paid under the "professionalization" section, unless specifically provided otherwise by a branch agreement or a collective agreement between employer and employee organizations having signed an agreement establishing an approved interprofessional OPCA.

An informative note ( http://www.pole-emploi.org/communication/note-d-information-pe-n-2010-80-du-17-mai-2010-@/communication/cocommunique.jspz?id=4152 ), established by PôleEmploi, specifies the provisions for carrying over the rights acquired under the DIF as set forth by the aforementioned law of November 24th 2009 when the employee is in an unemployment period and is registered at PôleEmploi.

- Resignation

The employee may request to benefit from the DIF, provided that the training, skills assessment or validation of prior experience activity is initiated prior to the end of the notice period.

- Retirement

A retiring employee may not benefit from the rights acquired under the DIF.

Fixed-term employees may benefit from the DIF provided that they have worked at least 4 months (consecutively or not) under a fixed-term contract, during the last 12 months. It is not required for them to have worked this time under a single contract.
For theseemployees :

• The amount of hours acquired under the DIF is calculated in proportion to the duration of their contract (on condition that they provided proof from having worked at least 4 months under a fixed-term contract during the last 12 months). For example, a six-month fixed-term contract grants 5 training hours under the DIF;

• Training, transportation and housing fees, as well as the training allocation, are paid by the OPCA who receives from the employer the 1% contribution to the financing of the individual training leave of fixed-term employees.

According to a departmental response published in the JOAN of March 1st, 2011, "employees under a fixed-term contract may benefit from the DIF after having worked 4 months (consecutively or not) in the same company, during the last 12 months. When the employee who meets the requirements has not used the rights acquired under the DIF within the company, these rights may be carried over to his period of unemployment or his newfound employment. To that end, upon the expiration of the employment contract, the employer mentions the unused rights acquired in the company on the work certificate. It is appropriate to deem the employer to be in debt of the rights acquired under the DIF by the employees when it comes to the seniority accumulated within the company and not while working for another employer. It rests upon the employer to mention those rights in the work certificate, however the employer may not mention rights that would result from seniority acquired while the employee was working under another employer".
As for the rest, the DIF is implemented in the same conditions as those provided for permanent employees: choice of the training activity, request of the employee, response from the employer, proceeding of the training, compensation...

The employer must inform fixed-term employees of the rights they hold under the DIF.