A version of this article was published in French by Mediapart

Through the window, dozens of tombstones marked “For sale” can be seen. Josefa* wants to meet us here, in this discreet union office that is located opposite a funeral marble factory, in an industrial zone in central France.  Barely a year ago, the Josefa had been a management-level employee at a retirement home run by Orpea, the world’s leading company in the sector. 

For several years, Josefa had been in charge of planning and editing staff employment contracts at an elder care home, located just a few kilometres away from where we are meeting now. Josefa alleges that for several years, “as a good little soldier”, she had drawn up irregular fixed-term contracts (referred to in French as ‘CDD’).

In France, the use of fixed-term contracts is strictly regulated by labour law: they must be of a temporary nature and cannot be used to replace what would otherwise be permanent jobs. These regulations are designed to protect workers from the insecurities of temporary employment and to make sure that they are not easily dismissed each time a fixed-term contract comes to an end. To avoid such abuses, each fixed-term contract must specifically mention the name of the person who is being temporarily replaced, or the reason why temporary employment is justified. For example, “Ms X, a care assistant, is replacing Ms Y, a care assistant with a permanent contract, who is going on unpaid leave.“

But despite these strict labour laws, permanent recruitment does not seem to be a policy of the Orpea management. Economic reasoning indicated that would be more profitable to change staff numbers based on occupancy rates. This number, of course, varies according to the number of new admissions and deaths of residents. And some employees might even prefer a temporary contract. As Josefa explains, “it is the choice of [some] employees to remain on fixed-term contracts because the wages on permanent contracts are too low.”

But what happens when the need for staff is temporarily higher in a care home and there are no permanent employees who are on leave? In order to hire someone on a fixed-term contract, how will the company come up with the name of an employee who is being temporarily replaced if there is no such person? 

Josefa claims that she entered fictitious employees into Orpea’s human resources software where contracts are drawn up. “I took the names of the candidates who had applied for a job with us and whose CVs I had,” says the former manager. “They existed but were not really in the personnel register.” These care givers, nurses and home helpers, who had never worked for Orpea, were unaware that their names had been stored and were being used in this manner.

Josefa is not the only management staff to have drawn up such contracts for the Orpea group, which currently operates 226 facilities and about a 100 clinics in France (through its subsidiary Clinéa). Several weeks of investigation have enabled Investigate Europe to discover that numerous falsified fixed-term contracts have been established in recent years within the Orpea group in France. These repeated infringements of labour law allowed the company to benefit from state funds.

Each year, nursing homes receive a ‘care budget’ from the national health insurance system and another for ‘dependency’ from the regions (départements). The care budget finances the vast majority of caregiving jobs in retirement homes (such as nurses, care assistants, medical-psychological assistants), while the dependency allowance finances jobs that accompany the loss of autonomy (life assistants, psychologists, etc.). 

In this manner, Orpea has received at least €350 million from the French health insurance system, according to official state figures provided to Investigate Europe. This mountain of public money was intended to subsidise the salaries of people working with the elderly in France. The number of staff in the sector is often insufficient and can lead to the mistreatment of residents, as denounced by parliamentarians, experts and trade unionists year after year — and as shown in the “Grey Gold” investigation by Investigate Europe. This is even more so in private for-profit care homes, where the glaring under-staffing has been brought to light thanks to the Covid-19 pandemic. 

“I wasn’t looking at what I was signing”. 

Orpea, founded by neuropsychiatrist Jean-Claude Marian in the 80s, has become the world leader in the “silver economy”, opening more than 1,000 establishments around the world. Listed on the stock exchange, its capitalisation has tripled in the last five years, reaching €9.3 billion in 2020. In 2021, the company employed more than 65,000 staff — mostly women (over 80%), almost half of them in France. Laetitia* was one of them. As were Linda*, Fatiha*, Amina*, Anne-Claire* and Dominique*.  

Three months after our meeting with Josefa, we meet Laetitia in front of the entrance to the labour court of a large city in the south of France. The former employee smokes nervously with one hand holding her teenage daughter’s hand with the other. She looks tense as she waits for her lawyer, who has just challenged her dismissal in court.

The hearing, it turns out, was encouraging. Laetitia’s file shows that in one of her fixed-term contracts from 2017, which we obtained, it is written that she is has been hired to do the job of someone called Patricia P. — a care assistant who is scheduled to join the company on a permanent contract — for almost €1,500 per month. In the five years that she worked for Orpea, Laetitia never met this phantom employee. “We didn’t ask any questions, we just signed it,” she says. “We were quite happy to have a contract and our money at the end of the month, especially me, who is alone with my daughter,” she replies, stubbing her cigarette with one foot.

But despite what is written on the contract, Patricia P. never joined the company. According to several employees interviewed, Patricia P. is the name of the mother of  the retirement home’s director. This director did not wish to answer the questions sent by Investigate Europe and Mediapart on this point. 

“[Patricia] used to pick up her daughter from time to time to go to dinner, that’s how I made the connection, because they don’t have the same last name,” Dominique*, a former Orpea employee, tells us. Like Josefa, this employee was in charge of editing the employment contracts for the company. According to Dominique, the director was following the orders of the management. And if the director wanted to use her mother’s name, it was, according to Dominique, because “she could quickly obtain a certificate in case the labour inspectorate came to ask questions”.

Interviewed by Investigate Europe and Mediapart, the director of the establishment, Auriane B., described “her daily concern to have full teams”, and said she accepts fixed-term contracts in her ranks because “she has no other choice”. Without addressing the use of her mother’s surname, she assures us that she has “never made a false contract”. However, this is not the opinion of several of her former employees.

Dominique recounts having used the name of the director’s mother “about 50 times, when we needed to recruit auxiliary care staff on a fixed-term contract”.  For licensed care care givers being hired on fixed-term contracts, the name was  always France R., a former temporary employee,” Dominique says. “I must have used her name between 200 and 300 times.”

According to Dominique, the process was simple. Every month, he entered the names of fictitious employees in the company’s HR software (SIRH Ap’). He then waited for Orpea’s management to validate the names before actually signing the contract with the new employee.

Dominique, therefore, believes that the human resources staff could not be unaware that France R. and Patricia P., who were not even Orpea employees, were very frequently replaced by temporary hires. 

Dominique also confessed to making a fixed-term contract for himself, when he was not yet on a permanent contract (IE and Mediapart have seen this contract). “I used the name of an employee who was working in another department and I wrote that he was absent [on leave].” That employee, according to his LinkedIn profile, was indeed working at Orpea, but in  a different department.

Even after Dominique’s departure from the company, Orpea continued to use the name of France R. in its contracts. In the spring of 2020, documents show that the famous France R. was even replaced by four employees at the same point in time. Linda*, Fatiha*, Amina* and Anne-Claire* noticed this discrepancy and demanded that their fixed-term contracts be converted into permanent contracts, proceeding to take legal action.

A year later, these care assistants all won their case before the Marseille labour court. The company argued that “the use of fixed-term contracts [was] justified”, that “the fixed-term contracts [in question] did not suffer from any irregularity”. But the court ruled that Orpea had not “produced any relevant evidence” to show that it had legally drawn up these fixed-term contracts. 

In their decision in favour of Linda, the judges wrote, “For the same period and for the same reasons, the Orpea company hired three other full-time employees to fill the same job [and the same employee]”. 

The fixed-term contracts of Linda, Fatiha, Amina and Anne-Claire were therefore reclassified as permanent contracts, with damages being provided to the employees. Orpea never appealed the decision.

Questioned by IE and Mediapart, Orpea’s management assured us that “there have never been (…) false employment contracts”, nor “fictitious employment within the company. The staff hired on fixed-term or permanent contracts are all declared and paid.”

In its response, the group stressed “the difficulty of recruiting in this sector on a permanent basis…as more and more candidates [wish] to give preference to fixed-term positions”. Thus, “Orpea may have to conclude fixed-term contracts either to replace an absent employee (leave, illness, training, etc.) or in the context of a vacant position for which we are waiting for the arrival of a permanent employee who has not yet arrived”. And the company “notes that fixed-term contracts cost the group 10% more than the expected and hoped-for permanent recruitment.” This, of course, would only be the case if the respective workers are on the job at all times. If fixed-term contracts allow for companies to terminate staff during times of lower demand, the companies can save a lot.

Linda, one of the employees who won the battle in court, claims she actually met one of these fictitious employees. “It’s a small world,” she tells Investigate Europe on the phone, “I bumped into the real France R. this summer in another establishment where I was doing a replacement. She told me that she had done a few shifts at Orpea in the past. Just temporary work, no permanent contract on the horizon. But she complains that her name has been ‘borrowed’”

Kéline Sivadier, union delegate at Orpea in Provence-Alpes-Côte-d’Azur), the region where the group has the most care homes, says that she is well aware of ‘the France R. case’ and of the issue of irregular contracts in general. “There are problems with the terms of certain fixed-term contracts, either the name or the reason for the contract is wrong, which means that it is reclassified as a permanent contract,” she says. “We have already seen that they put two fixed-term contracts on the same absence, for example.” The trade unionist says she has reported this to the labour inspectorate and to Orpea management.

As evidenced by several emails that Investigate Europe and Mediapart have obtained, Sivadier is not the only union delegate in the group to have reported cases to the labour inspectorate. When approached by us, the inspectorate replied that it “does not comment on current cases”.

Lea Talrich is a labour lawyer at the law firm, Karaa, who has pleaded dozens of times against Orpea to have fixed-term contracts requalified. She reminds us that drawing up a fixed-term contract “whose purpose or effect is to fill a job linked to the normal and permanent activity of the company on a long-term basis” constitutes an offence punishable by a fine of €3,750, according to the Labour Code. In the case of a repeat offence, “the penalty is €7,500 and six months imprisonment”.

For his part, Philippe Gallais, one of the national leaders of the CGT workers union at Orpea, does not hide his intentions: “We are discussing it with our lawyers, if we have the opportunity to go to court, we will go.” The stories of ‘false contracts’ (as they are called by many employees) make this nurse — who has spent two decades in the field — very indignant. “When you know the working conditions in our establishments and the blatant understaffing, it’s a shame,” he says.

In a confidential email obtained by IE and Mediapart, a labour inspector wrote that, in her opinion, the multiplication of replacement contracts for one person over the same period, could constitute “a generalised fraud”. 

The investigation also enabled IE to gather accounts showing that the same process could be taking place in other regions across France. There are also problematic fixed-term contracts at Clinea, the group’s subsidiary which operates about a hundred clinics in the country.

“The problem was raised by two staff representatives in the Clermont-Ferrand region,” Jean-Claude, a trade unionist, tells us on condition of anonymity, citing two specific clinics. “We went there and realised that the contracts had names that did not appear in the staff register.” 

The representative says he managed to gather a large number of potentially fraudulent contracts with fictitious names.

In a Clinéa establishment in Villeurbanne (Rhône-Alpes), IE and Mediapart were able to obtain several fixed-term contracts where a care assistant was replacing a nurse — even though the two jobs have different pay grades. For Gallais, the difference is significant: “The auxiliary — you pay her the minimum wage while the nurse you pay her several hundred euros more”. This salary difference is all the more important, in his eyes, given that these positions are financed by state allocations.

Noémie* knows the issue well. This former deputy director of an Orpea clinic in Toulouse does not hesitate to expose the company’s management. For five years, she was a well-oiled cog in what she describes as a system. “The regional and national managements didn’t want to recruit on permanent contracts. It was orders, we had no choice, we had to cooperate,” she says by telephone. “We were working with two or three names — people who had retired, others who had resigned or were not renewed, a temporary employee who had found a permanent position elsewhere.”

Noémie says she wrote between 150 and 200 contracts per month, half of which, she claims were irregular. In total, based on her account, several thousand irregular fixed-term contracts could have been issued by Orpea. “The management told us to create ‘fictitious cycles’ in the software to integrate temporary workers into them. They could even refuse us contracts if we didn’t put in the names of people who had left.”

“The only national instruction given to our establishments is to try to replace any absence in compliance with legal prerogatives, in order to be able to ensure the continuity of care,” the Orpea group told Mediapart and IE.

According to Noémie’s account, in the Toulouse clinic, she also received instructions to plan fewer hours of work for the replacement: “If the incumbent did 12 hours, you made the replacement do only 10 hours, by removing the transmission hour for example, the hour when the teams pass the baton to the next ones.”

When asked about what exactly the establishments declared to the ARS, regarding the contracts described as deceptive, Orpea did not reply. 

“The error is human”

Across France, the same stories seem to be repeated. Although the labour inspectorate, the industrial tribunal and the regional health agencies have been alerted, the group’s “human relations” department does not seem to be concerned.

Last spring, at the meeting of a staff representative body, a union delegate at Orpea questioned the management on the existence  of several of these ‘irregular’ contracts in different establishments. According to the documents obtained by IE, the statement did not trigger a wave of panic in the assembly; far from it. 

“Just because management countersigns a contract does not mean that it is exempt from all risks of error, error is human,” the delegate was told.

One of the other union delegates present that day, who was reputed to have a less confrontational relationship with management, thought it wise to point out that at Orpea, irregular fixed-term contracts were not mistakes, “but little arrangements”.

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 * All names in this article have been altered,  as the employees requested anonymity. Their identities and work relations with Orpea are known to Investigate Europe and have been verified.

Edited by Sindhuri Nandhakumar and Elisa Simantke for Investigate Europe