New rules applicable to posted employees in France

 

A European Union order about the secondment of employees (n° 2018/957, of June 28th, 2018) has been recently transposed as a French ruling which aims to clarify the obligations for foreign companies posting employees to France. This new regulation also aims to ensure a more systematic respect of posted employees’ rights. It is applicable since the 30th of July 2020. 

A new distinction between long and short secondments

The French Labor Code provides the obligation, for foreign employers posting employees in France, to apply to them certain statutory and conventional provisions under the same conditions as for employees of French companies in the same branch of activity.

These provisions relate to the following:

  • Individual and collective freedom in the employment relationship,
  • Non-discrimination and professional equality between women and men,
  • Protection around maternity, paternity, adoption leaves,
  • Leaves for family events,
  • Conditions and guarantees applicable in the event of secondment by a temporary employment company,
  • Exercise of the right to strike,
  • Working time and compensatory rest,
  • Public holidays and paid annual leave,
  • Night work for young workers,
  • Remuneration and payment of salaries, including hours’ overtime,

If the employee is posted within a French company, his/her remuneration should be equal to the remuneration of an employee of the hosting company with equivalent qualifications and job (secondment related allowances are considered as part of the remuneration (expatriation bonus, etc.)).

  • Health and security at work,
  • Child employment and undeclared labor,
  • Reimbursement of professional expenses.

Since July 30th, 2020, a distinction is now made according to the duration of the secondment. The derogatory framework, meaning the regulations exhaustively listed above, now only apply during the first 12 months of posting.

From the 13th month, the foreign employing company is no longer only bound by this derogatory framework but must apply all the provisions provided for by the French Labor Code and the applicable conventional rules (Collective Bargaining Agreement applicable to their sector of activity and applicable at the level of the hosting company).

Excluded are rules relating to:

  • The formation and execution of the employment contract, as well as its transfer and termination,
  • A modification of the employment contract based on an economic reason,
  • Fixed-term contracts,
  • Certain specifics mechanisms for the payment of social contributions called “chèques et titres simplifiés de travail” in French.

When the situation warrants it, the employing company can request that only the derogatory framework continues to apply for a period up to 6 months after the end of the 12-month period provided. This motivated request can be made on the SIPSI website: https://www.sipsi.travail.gouv.fr/ 

Please note that this website is also the one through which the prior declarations of posting must be sent to the French Labor Inspection. This declaration should be performed before the beginning of the secondment.

Note: in the event of the replacement of the posted employee by another posted employee, the duration of 12 months will be reached when the cumulative duration of the two successive contracts on the same position is equal to 12 months.

The employer who continues to apply the derogatory framework to an employee posted for more than 12 months, without having requested the prior authorization, runs the risk of having to pay a fine of € 4,000 (€ 8,000 if recidivism) per posted employee concerned.

An obligation of reimbursement for professional expenses

The allowances specific to the secondment are considered as part of the seconded employee’s remuneration. However, the amounts paid for reimbursements of expenses actually incurred because of the secondment are excluded and must be paid by the employer. Such professional expenses, of a special nature inherent to the employees’ function or job, incurred during the performance of their assignment, in terms of transportation, meals and accommodation, should be reimbursed by the employer under the cumulative conditions that:

  • The reimbursement of these professional expenses by the employer is provided by statutory or conventional provisions,
  • That these expenses are related to the business travel of the posted employees, from or to their usual place(s) of work in France.

When the employer does not provide proof of payment of all or part of the allocation specific to the secondment in respect of the remuneration or expenses actually incurred as a result of the secondment in application of the employment contract or the law governing it, the entire allowance is then considered to be paid as reimbursement of expenses and is excluded from the remuneration (i.e. it is not taken into account to check compliance with the applicable mandatory minimum salary).

New specificities regarding the mandatory prior declaration of secondment

The new regulation provides that when the secondment is cancelled or the initial forecasted dates of secondment are modified, the employer must cancel or update its declaration through the SIPSI website.

It also provides that the hosting company has the obligation to annex to its personal unique register the acknowledgments of receipt of the mandatory prior declarations of secondment of employees submitted to the French Labor Inspection by the employing company, and no longer a copy of these declarations. The acknowledgments of receipt from the Labor Inspection are received by the employing company on the email address provided in the declarations. These documents must be made available to the Employees’ representatives, if any, of the hosting company and to the control officers from the Labor Inspection. If the hosting company does not receive communication of these documents, it must inform the French Labor Inspection through the SIPSI website by performing a sub-declaration.

When an employer posting employees in France has been ordered to pay administrative fines in France, the Labor Inspection is informed and can claim payment of these fines from this employer.

In the event that the employer does not proceed to their payment, the Labor Inspection can then prohibit any posting of employees in France until these fines are actually paid by the employer.

A new framework for temping companies posting employees in France

It happens that a user company established outside of France, in order to carry out its activity in France, used posted employees made available by a temporary employment company also established outside of France. In this case of indirect secondment, the user company was previously obliged to send to the Labor Inspection a statement certifying that the employer has been made aware of the posting of his/her employee in France. This obligation is now replaced by a simple obligation of information.

Consequently, the user company is required to inform the temping company, by any means and within a reasonable time preceding the secondment, about the secondment of the employees made available.

This information must include:

  • the estimated duration of their secondment in France and the list of the employees concerned, the contact details of the final user company (in France) and the location of their working place(s),
  • the formalities prior to the secondment of posted employees which must be carried out by their employer,
  • the list of documents (translated in French) which must be kept at the place(s) of work of the posted employees,
  • the list of the applicable regulations in the derogatory framework of secondment,
  • the collective bargaining agreement(s) applicable to the posted employees,
  • the provisions of the French Labor Code related to temporary work,
  • the link to the website of the French Labor Ministry, which contains information in nine languages (https://travail-emploi.gouv.fr/droit-du-travail/detachementdes-salaries).

In the event of failure to comply with this obligation of information, the foreign user company may be subject to an administrative fine when the temporary employment company disregards the applicable rules about remuneration. The amount of the fine can attain € 4,000 per posted employee and € 8,000 in the event of recidivism.

In the case that an employee is directly posted, by a temporary employment company, in a user company located in France, since July 30th, 2020, this employee benefits from new statutory guarantees.

Consequently, the stipulations of the collective bargaining agreement(s) applicable to the workplace and to the employees of the user company must as well benefit to the posted employees, under the same conditions, in terms of working time, night work, weekly rest, public holidays, health and safety at work, work of women, children and young workers.

The same equality of treatment must especially be observed regarding the rules and stipulations related to the remuneration of the employees. Consequently, the salary of the posted employee cannot be lower than the salary provided in the services contract signed between the temp agency and the French hosting company which stipulates the secondment and the public holidays must be paid to this posted employee if the other employees of the hosting company benefit from them without any seniority requirement.

Should you have any questions, or should you need assistance in this matter, please do not hesitate to contact us.

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