Employment & labour law in France.

Ogletree Deakins – Karine Audouze and Jean-Marc Albiol

France, Global December 8 2017

Use the Lexology Navigator tool to compare the answers in this article with those from other jurisdictions. 

Country snapshot

Key considerations

Which issues would you most highlight to someone new to your country?

Compliance with France’s written labour code does not prevent an employer from violating employment requirements. Employers have additional obligations, above and beyond those set forth in the code, that arise from:

• industry-wide collective bargaining agreements;
• company-wide agreements;
• employment contracts;
• case law from French labour courts; and
• other sources (eg, company customs).

Complete compliance requires meeting all of the above requirements, as well as complying with the rules set forth in the written labour code.

What do you consider unique to those doing business in your country?

At the local level, French labour court judges are not required to be neutral or to have any legal credentials. A four-judge panel consists of two judges appointed by employer organisations and two judges appointed by employee unions. Although employer organisations tend to appoint judges with a background in human resources or with some basic legal skills, the unions may appoint labour court judges with no legal background whatsoever.

Is there any general advice you would give in the employment area?

In addition to complying with all applicable laws, employers should maintain an ongoing dialogue with union and staff representatives. Keeping lines of communication open and having an awareness of workplace culture can help employers a great deal.

Emerging issues/hot topics/proposals for reform

Are there any noteworthy proposals for reform in your jurisdiction?

President Emmanuel Macron has proposed a number of labour reforms as part of his economic agenda. Some that have been signed into law, but are not yet effective, cap damages for unfair dismissals and shorten the deadline for bringing an unfair dismissal claim. Other proposed measures include:

• changes to collective bargaining rules;
• new rules making it easier for an employer to negotiate a voluntary reduction in force with employees;
• new rules that reduce the complexity of French employee representation by committees;
• new requirements regarding workplace safety and employee health; and
• measures that ease restrictions on remote work.

What are the emerging trends in employment law in your jurisdiction?

Recent labour reforms have been aimed at improving the abilities of employers to predict and limit the time and costs associated with resolving labour challenges. The reforms are intended to reduce the risks and uncertainty associated with employing workers and to promote more hiring, while preserving employee rights.

The employment relationship

Country specific laws

What laws and regulations govern the employment relationship?

The employment relationship in France is subject to a complex body of rules issued by multiple sources. The French Constitution outlines the fundamental rights (eg, union rights) of employees; there are also EU rules which affect the French employment legal framework (eg, the EU directive regarding posted workers).

The Labour Code sets out basic rules which derive from laws adopted by legislative bodies or the government.

Collective bargaining (both industry-wide and company agreements) play an important role in the creation of rules for the employment relationship. Some of the provisions adopted by collective bargaining agreements can supersede the rules set by the Labour Code.

Who do these cover, including categories of worker?

Legal rules apply to all individuals or legal entities which take part in an employment relationship. As there is no particular legal definition of the employment relationship, case law has set out the following cumulative criteria for identifying such a relationship:

• the subordination of one person to another;
• the performance of an activity; and
• a remuneration granted for performing said activity.

Individuals working for state entities under a public law contract are not covered by employment law and benefit from specific rules according to their specific status.

Rules issued from collective agreements may cover only certain categories of worker or apply only to a certain geographical zone, industry or company.

Misclassification

Are there specific rules regarding employee/contractor classification?

The employee/contractor classification in the French legal framework has been extensively disputed, notably with regards to Uber drivers and bike couriers who have initiated legal proceedings in order to be requalified as employees and to benefit from the protected status of employees.

In order to characterise an employment relationship, labour courts do not limit themselves to the contract signed between the parties. Judges also look at factual elements and attempt to identify the characteristic features of the employment relationship as outlined above.

Contracts

Must an employment contract be in writing?

French labour law provides that the parties are free to decide under which form they want to enter into an employment contract. This can take the form of a verbal agreement or a written agreement. However, French labour law provides that the employer must inform the employee in writing of the conditions applicable to the employment contract. Therefore, most contracts are in writing.

The Labour Code provides that some types of employment contract must be in writing and contain certain mandatory provisions. This applies to the following contracts:

• definite-term employment contracts;
• part-time employment contracts;
• temporary employment contracts;
• home worker employment contracts;
• apprentice employment contracts; and
• professionalisation employment contracts.

Moreover, some industry-wide collective bargaining agreements impose the necessity of a written agreement between the parties.

Are any terms implied into employment contracts?

Yes, the employer must:

• provide the employee with work;
• comply with the rules applicable in the employment contracts in industry-wide collective bargaining agreements and in company-wide agreements;
• ensure the employee’s safety; and
• perform the employment contract in good faith.

The employee must:

• perform his or her employment contract professionally and in good faith;
• ensure his or her own safety; and
• meet confidentiality obligations while performing the contract and after the termination of the employment contract.

Are mandatory arbitration/dispute resolution agreements enforceable?

Such agreements do not exist per se in France. However, settlement agreements entered into between the employer and the employee are enforceable.

How can employers make changes to existing employment agreements?

French labour law provides two types of change that can be made by the employer to existing employment contracts:

• changes in the employee’s work conditions which do not require the approval of the employee; and
• modification of the employment contract which requires the employee’s prior approval.

The French courts have ruled that the contractual character of a modification is assessed in light of the provisions stated within the employment contract and the following elements which by nature are considered as essential to any employment contract and thus require the employee’s consent prior to any change:

• function;
• remuneration;
• working time; and
• place of work.

However, if the employee is a protected employee (eg, a staff delegate, a member of a health and safety committee or a works council member) his or her agreement is required in both types of change mentioned above.

Foreign workers

Is a distinction drawn between local and foreign workers?

The main distinction drawn between local and foreign workers is that foreign workers must have a valid work permit in order to be legally employed in France. Moreover, an employer that hires a foreign worker (non-European Union) must pay a tax to a specific organisation (Ofii) if the length of the employment contract is longer than three months. The amount of the tax depends on:

• the remuneration paid to the employee; and
• the length of the employment contract.

Recruitment

Advertising

What are the requirements relating to advertising positions?

Newspapers that specialise in advertising jobs are permitted, as long as they are free. On the other hand, the publication of job adverts in the general press is permitted as long as the publication does not have the specific purpose of advertising jobs.

All published job adverts must be dated. An employer can advertise an anonymous offer, but in order to do so, it must provide its name and address to the director of the publication or the person in charge of the means of advertisement.

French law prohibits adverts which:

• are written in a foreign language (concerning services to be performed on French territory);
• make false or misleading statements about the main characteristics of the job offered;
• mention an upper age limit;
• mention any discriminatory criteria.

Background checks

What can employers do with regard to background checks and inquiries in relation to the following:

(a) Criminal records?

Criminal records in France are available only to the individual to whom they concern and cannot be obtained by third parties (ie, their employer). The general rule is that any request made by an employer to obtain a copy of a criminal record is prohibited.

Some provisions allow certain employers, such as securities companies or regulated professions (eg, attorneys and bankers) to request copies of criminal records.

(b) Medical history?

Job applicants are not required to inform their future employer of their state of health or disability. Only an occupational doctor is entitled to be informed during a medical check-up. An employer cannot collect information on the size, weight or vision of job candidates.

(c) Drug screening?

It is not permitted to use routine drug screening tests in the workplace. However, a drug screening can be considered if the position in question justifies it (eg, a security position or a position in the transportation industry) and the job applicant is informed about the screening process.

(d) Credit checks?

Employers cannot seek or collect information relating to an applicant’s bank accounts or loans.

(e) Immigration status?

Employers are entitled to ask a candidate to provide his or her civil status and nationality. However, the principle of non-discrimination forbids the employer from dismissing or failing to hire a candidate because of his or her nationality.

(f) Social media?

No specific provision forbids an employer from using social media in order to collect information about an applicant. However, no personal information can be collected without the candidate being informed. This means that an employer should inform applicants that it investigates social media. Further, the Labour Code contains a general obligation of proportionality (between the position of the employee and the information requested), which applies to the collection and processing of personal data on employees, whether they are potential hires or existing employees. This means that information can be collected about an employee only if the information is intended to assess the professional abilities of the person.

(g) Other?

An employer may gather information concerning the professional training of an employee, his or her diplomas, his or her references and his or her past professional and work experience – but only in order to ensure his or her professional competence. French courts strictly apply these rules and do not allow employers to request information about an employee’s private life. For example, an employer can ask for copies of a candidate’s diplomas but cannot ask for his or her whole school file.

Wages and working time

Pay

Is there a national minimum wage and, if so, what is it?

Yes, the legal minimum gross monthly wage for a 35-hour working week is currently €1,480.27. The amount changes every year. Collective bargaining agreements often provide for higher minimum wages for employees.

Are there restrictions on working hours?

The legal working week for employees in France is 35 hours. If employees work a greater number of hours per week, overtime must be paid at an increased rate, and in certain cases, additional time off must be granted. The working time legislation in France has undergone significant reform in recent years.

Working time may be organised in a more flexible way for certain categories of employee (eg, executives) by providing for a set number of days per year to be worked. In this working time scheme the employee is entitled to additional days off.

The law on working hours does not apply to senior executives or to a restricted category of employees who are part of the management of a company and have high levels of responsibility and independence, who are free to organise their working time as they wish.

Hours and overtime

What are the requirements for meal and rest breaks?

Employees may not work more than 10 hours per day and may not work more than a maximum average of 44 hours per week over a 12-week period. They may not work more than a maximum of 48 hours in any one week. These maximum limits do not apply to senior executives or employees who work a fixed number of days per year.

Generally, all employees must be entitled to a daily rest period of 11 consecutive hours and a weekly rest period of at least 24 hours per week, to which the daily rest period of 11 hours is added (ie, a total of 35 consecutive hours’ rest).

How should overtime be calculated?

Unless an employee is subject to an exemption (eg, senior executives or executives with a set number of working days per year), any hours worked over 35 hours within the same week are considered as overtime hours and are therefore calculated on the basis of the week considered.

What exemptions are there from overtime?

The two main exceptions concern senior executives or certain executives if they are subject to a specific working time arrangement which sets a number of days worked per year in accordance with a collective bargaining agreement. Other exceptions exist concerning non-executive employees. For example, through a company collective bargaining agreement it is possible to set a weekly working-time duration of more than 35 hours, but not greater than 39 hours throughout the whole year, in exchange for a number of additional days off per year.

Is there a minimum paid holiday entitlement?

Employees are entitled to a minimum of five weeks’ paid holiday per year. In addition, there are approximately 11 days of French bank holidays per year.

Employees may benefit from additional leave provided for by law or an industry-wide collective bargaining agreement in certain specific circumstances (eg, depending on length of service or for family events).

What are the rules applicable to final pay and deductions from wages?

Employers are liable for the payment of both employer and employee social security contributions and must withhold the contributions from the employee’s gross monthly salary.

Social security contributions in France are considered to be high compared to other European countries: employer social security contributions amount to approximately 43% of an employee’s gross salary and employee social security contributions amount to approximately 22% of gross salary.

Record keeping

What payroll and payment records must be maintained?

An employer has an obligation to keep a copy of each employee’s payslip for five years following the issuance of the payslip.

Documents relating to social contributions and taxes paid on salaries by an employer must be kept by the employer for three years.

Discrimination, harassment & family leave

Family and medical leave

What is the position in relation to family and medical leave?

Family leave The law provides for:

• a list of events that trigger an employee’s right to benefit from family leave; and
• the minimum duration of the leave, which varies depending on the type of event.

Provisions in collective agreements regarding family leave, which may exist at an industry-wide level or within a company, may supersede legal provisions only if they are more favourable to the employee (eg, they provide for a longer duration or they list additional events that allow the employee to benefit from family leave).

To benefit from the leave, the employee must provide his or her employer with a justification. This leave is deemed as effective working time and remunerated as such.

Medical leave An employee incapable of performing his or her work due to an illness has the obligation to inform:

• his or her employer; and
• the national health insurance body (Caisse Primaire d’Assurance Maladie), usually within 48 hours following the illness.

Compliance with these obligations justifies the employee’s absence and the suspension of his or her employment contract.

Compliance with the legal requirements (or those laid out in collective agreements) allows the employee to receive financial coverage from health insurance and his or her employer, in replacement for his or her salary. The amount paid by the employer may vary depending on the provisions of the applicable collective agreement and the employee’s seniority. The procedure mentioned above does not apply to occupational diseases.

Harassment

What is the position in relation to harassment?

Harassment is classified as being of either a sexual or psychological nature. Harassment of either nature is strictly prohibited under French law and can result in criminal sanctions.

Employers have a legal and general obligation to guarantee worker safety. Therefore, the employer must implement all measures in order to prevent any form of harassment.

Whistleblowing

What is the position in relation to whistleblowing?

The position in relation to whistleblowing has been recently actualised by the Sapin II Law (December 9 2016), which primarily serves to protect whistleblowers. The law provides as a general principle that an employer may not dismiss or sanction an employee on the grounds that he or she is a whistleblower.

Further, the law (supplemented by a decree of April 19 2017) compels companies with more than 50 employees to implement an internal procedure designed for employees who wish to provide information about a company’s potentially illicit activities. The purpose of this procedure is to allow employers to identify a problem detected by an employee and to solve it internally. Failure to do so entitles the employee to contact the relevant authorities. In the absence of a response, the employee may disclose the issue to the press or the public.

This procedure will come into effect on January 1 2018.

What is the position in relation to:

Protected categories

(a) Age?

French law provides that an employer cannot discriminate against employees or job applicants because of their age.

Nevertheless, differences in treatment with respect to age may be accepted when there are objective reasons justified by a legitimate purpose, which include:

• the prohibition of persons of a certain age (young or old) from carrying out specific functions or working under specific conditions, when this is necessary to protect them; and
• the setting of a maximum age for a position, which is justified by the training required for the vacant position.

(b) Race

Discrimination based on race or ethnic group is strictly prohibited under French law.

(c) Disability?

Discrimination based on disability is strictly prohibited under French law. Pursuant to the Labour Code, disabled people must account for 6% of a company’s total workforce.

(d) Gender?

Any discrimination based on gender is prohibited under French law. Labour law provides for a general principle of gender equality in the professional world. However, an employer may make a distinction based on gender when it corresponds to “an essential professional requirement, provided that the objective pursued by the employer is legitimate and proportionate”.

(e) Sexual orientation?

Discrimination based on sexual orientation is strictly prohibited under French law.

(f) Religion?

Discrimination based on religion or beliefs is strictly prohibited under French law.

However, employers are not required to accommodate for religious practices. Public employers may not permit certain religious practices at work (eg, wearing a hijab).

(g) Medical?

Discrimination based on a medical condition is prohibited under French law. However, differences of treatment based on the employee’s incapacity stated by the labour physician are justified when objective, necessary and appropriate.

A dismissal based on an employee’s illness is discriminatory and usually unlawful. However, subject to some conditions, if the employee’s repeated medical leaves disrupt the company’s activity and it is necessary to replace him or her on a permanent basis, the employee can be legitimately dismissed.

(h) Other?

Workers performing union representative or staff representative duties must not be treated differently as a result of their role.

These employees benefit from additional protection under the Labour Code. The procedure for their dismissal or state-regulated amicable termination of their employment contract is regulated by specific provisions designed to ensure that the employer’s underlying motivations are not of a discriminatory nature.

Privacy in the workplace

Privacy and monitoring

What are employees’ rights with regard to privacy and monitoring?

French law is very protective of employee privacy in the workplace.

An employer cannot take actions or set up policies which restrain the private life of employees. For example, employees can have personal conversations and keep private documents in the workplace as long as they do not have an effect on the performance of their employment contract.

French case law provides that an employer cannot monitor or check employees’ personal conversations or correspondence. Therefore, all emails, letters and documents which are marked as confidential and personal cannot be checked by the employer without violating the secrecy of correspondence and the employee’s right to the protection of his or her private life.

If an employee’s emails, documents and files stored on a work computer are not marked as confidential, an employer can have full access to and control of them.

Employers must also comply with numerous regulations set by the National Commission on Informatics and Liberty (the French data commissioner) on the monitoring of employees.

To what extent can employers regulate off-duty conduct?

An employer cannot control or regulate an employee’s off-duty behaviour and cannot sanction an employee for off-duty actions.

However, French law provides exceptions allowing the employer to sanction an employee’s off-duty action if the employee’s behaviour:

• breaches the employment contract and the loyalty obligation implied by the employment contract;
• is linked to the employee’s professional life; or
• creates significant issues for the company.

Are there rules protecting social media passwords in the employment context and/or on employer monitoring of employee social media accounts?

There are no rules protecting social media passwords in the employment context, but an employer cannot monitor an employee’s social media accounts as this is classified as being part of the employee’s personal life. However, French case law provides that the employer can use information provided by the employee in his or her social media account in certain circumstances, provided that the account is public.

Trade secrets and restrictive covenants

Intellectual Property

Who owns IP rights created by employees during the course of their employment?

Under French law, inventions created by employees during the course of their employment are usually classed as being the employer’s property. Nevertheless, the employee is entitled to receive a complementary remuneration, defined by collective agreements or under the employment contract.

The copyright of intellectual creations of an employee as defined by the IP Code may be assigned to the employer if they were created during the course of his or her employment. IP rights relating to software created by an employee are assigned to the employer.

Restrictive covenants

What types of restrictive covenants are recognised and enforceable?

During the course of an employment contract, an employee may be subject to an obligation of confidentiality (provided that such a covenant is part of the employment contract) which prohibits him or her from disclosing information deemed confidential by the company. It is possible to provide in such a clause that this also applies for an indefinite term after the termination of the employment contract, provided that this does not affect the employee’s freedom of work.

Non-compete covenants are also enforceable after termination of an employment contract, provided that the non-compete clause is:

• necessary to protect the company’s legitimate interests;
• justified with respect to the particularities of the concerned employee’s position; and
• limited in time and space.

The employee must also be remunerated in consideration for complying with the non-compete obligation.

Non-poaching covenants can also be included in employment contracts, provided that they do not restrain the employee