We assist you in all aspects of labour/management relations:
Selection of the appropriate type of employment contract
Choosing the right and applicable collective bragaining agreement
Counsel regarding issues that arise in management of personnel
Termination of employment contracts
Litigation before all French courts
International mobility
Dismissal of an employee must be for good cause.Concretely, that means that it must be based on one or more verifiable facts that constitute the true reason for dismissal.The facts invoked must be sufficiently serious to justify dismissal.Dismissal may be based on personal or economic grounds. Moreover, both employers and employee can agree to termination the contract by mutual consent
Counsel in labour law and representation of both em-ployees and employers in litigation throughout France. We represent clients in a full range of matters related to em-ployment, including disputes regarding wages, wrongful termination, retaliation and discrimination, harassment, and executive compensation, as well as disputes regarding social security and other payroll contributions
You are a foreign company that wishes to hire an employee in France but you do not wish to create a subsidiary or a legal structure in France. We are here to help you. Our firm takes care of all the steps from the drafting of the employment contract, the registration of the employee with the various organisations in France to the pay slips
An employment contract for an unspecified period is governed by common law.
The employer should take cognizance of several important considerations before concluding a contract for an unspecified period.
Are any formalities required for the hiring of an employee for an unspecified period?
Except in special circumstances, no particular formalities are required. The hiring may occur orally.
However, if an employee is hired without a written contract, the employer must transmit to the employee in writing the essential elements of the labour relationship no later than two months after the hiring.
Should a trial period be specified?
The employment contract may specify a trial period, which must be expressly defined with respect to both its nature and its duration from the date of the hiring.
What is the duration of a trial period?
The labour code specifies the maximum time for a trial period:
- two months: for labourers and employees
- three months: for supervisors and technicians
- four months: for executives
The trial period may be renewed once if the collective labour agreement allows such a renewal. But its duration, including any renewal, generally may not exceed:
- four months: for labourers and employees;
- six months: for supervisors and technicians
- eight months: for executives
It is important to consult the collective labour agreement that applies to the sector involved, as it may specify shorter or longer periods.
Under what circumstances can the employer end the trial period?
The employer can terminate an employment contract during the course of the trial period by giving the employee an advance notice that varies according to the employee’s length of service in the company:
- 24 hours after eight days of service,
- 48 hours after service of 8 days to one month
- two weeks after one month of service
- one month after three months of service
Under what circumstances can the employee end the trial period?
The employee can terminate the employment contract by giving the employer a 24-hour advance notice if the employee’s length of service in the company is less than 8 days, and an advance notice of 48 hours in other situations.
To meet a particular need for labour, the employer, under certain conditions, may hire an employee for a specified period. However, in France, the common law contract is a contract for an unspecified period, and the use of a contract for a specified period is strictly circumscribed.
The employer must strictly observe the rules that apply to contracts for a specified period. Indeed, a failure to comply therewith results in the contract being deemed a contract for an unspecified period.
In what situations can the contract for a specified period be used?
The labour code strictly circumscribes the use of contracts for a specified period. It specifically and exhaustively defines the situations in which it may be used. The most common situations are:
- A temporary need for supplementary labour due to a temporary increase in the company’s business
- Seasonal work;
Attention: An employment contract for a specified period, regardless of the justification, shall not be for the purpose, or have the effect, of filling a long-term job that is related to the company’s regular business. An employment contract for a specified period may be concluded only for the performance of jobs that are specifically defined and temporary.
Hence, a number of questions must be considered by the employer prior to concluding a contract for a specified period:
- Must the contract specify a term?
- What is the maximum duration of a contract for a specified period?
- Can a contract for a specified period be renewed?
- Are there particular requirements regarding procedure and form for conclusion of a contract for a specified period?
- In what situations can an employment contract be terminated prior to expiration of the specified period?
- Is it possible to conclude successive contracts for a specified period with the same employee?
- Is it possible to conclude successive contracts for a specified period for the same job?
We are available to assist you regarding all of these issues throughout the hiring process and the drafting of the employment contract.
An employee is deemed to work part-time when his working hours are less than the legal workweek (35 hours a week), or less than the working time that is set by the collective labour agreement or that which is applicable in the particular establishment (if the latter is less than the legal workweek).
What are the mandatory provisions required for part-time contracts?
A part-time employment contract is a written contract that must include certain mandatory information such as: the employee’s qualification, the elements of remuneration, the working time, the distribution of working time between days of the week or weeks of the month (unless otherwise stipulated), etc.
The employer must consider a number of questions prior to the signing of a part-time contract:
What is the minimum working time?
What are the legal requirements regarding the working hours of a part-time employee?
Can the employee refuse a change in the distribution of his working time?
Can the employee work more hours than are specified in his contract?
What is the remuneration for overtime?
Can the employee refuse to work overtime?
Can the employer ask the employee to temporarily work beyond the time specified in his employment contract, in order to deal with a temporary increase in the business?
We are available to assist you regarding all of these issues throughout the hiring process and the drafting of the employment contract.
NONCOMPETITION CLAUSE
The purpose of a noncompetition clause is to prohibit the employee, after termination of his employment contract, from working for a competing company or engaging in any manner whatsoever in a business that competes with that of his former employer.
CONFIDENTIALITY CLAUSE
A confidentiality clause may be included in an employment contract
Its purpose is to prohibit the employee from disclosing confidential information acquired during the course of his employment.
MOBILITY CLAUSE
A mobility clause enables the employer, for reasons related to the company’s needs, to transfer an employee to another facility during the course of his employment.
EXCLUSIVITY CLAUSE
An exclusivity clause prohibits the employee from engaging in any other professional activity during performance of the employment contract.
The obligation of honesty and fidelity contracted by the employee prohibits him from simultaneously being in the service of two competing employers.
This is dismissal for reasons imputable to the employee.
It may of course be disciplinary – i.e. based on the employee’s misconduct (in which case it must occur within two months thereof), or nondisciplinary.
I Disciplinary dismissal:
An employee’s misconduct may be sanctioned by dismissal.
However, misconduct does not always constitute grounds for dismissal: it must be sufficiently serious to justify termination of employment.
A dismissal procedure for misconduct must be initiated within two months of the date on which such misconduct is brought to the employer’s attention.
Any sanction that occurred more than three years prior to the initiation of disciplinary proceedings cannot be invoked in support of a new sanction.
An employee’s misconduct may not be subjected to a double sanction.
II Dismissal due to professional inadequacy:
An employee’s professional inadequacy may constitute a legitimate ground for dismissal when it is based on objective and specific elements that are imputable to the employee.
The inadequacy does not necessarily have to consist of gross negligence.
But it is to be noted that settled case holds that insufficient results do not, in and of themselves, constitute real and reasonable grounds for dismissal.
For dismissal to be based on real and reasonable grounds, insufficient results must be attributable to the employee’s professional inadequacy or fault.
III Dismissal due to incapacity:
Dismissal may result from the employee’s incapacity for carrying out his responsibilities.
Such incapacity must be established by a practitioner of occupational medicine after two medical examinations within two weeks or after one medical examination when keeping the employee at his post would pose an immediate danger to his health or safety or that of third parties.
Dismissal may be envisaged only if there is no possibility of reassigning the employee.
If the employee has not been reassigned or dismissed within a month following the notice of incapacity, the employer is required to resume payment of his salary.
IV Dismissal due to disturbance in the company’s operation caused by the employee’s prolonged or repeated sick leaves:
Prolonged or repeated leaves for illness constitute a legitimate ground for dismissal if such leaves seriously disrupt the company’s operation and the employer must definitively replace the ill employee with another employee.
An employee on leave for nonoccupational injury or illness may be dismissed only if the disturbance caused thereby requires the employer to definitively replace him with another employee. (Cassation Court, labour division, 22 April 2011, 09-43.334)
However, the leave must not have been caused by mental harassment of the employee.
Pursuant to French law, redundancy for economic reasons is defined as dismissal by an employer for reasons that are not related to the employee personally, but are due to an elimination or transformation of jobs, or to a change in an essential element of the employment contract that is refused by the employee, particularly in the context of economic difficulties or technological changes.
The courts have added two economic reasons for dismissal:
- Reorganization in order to maintain the company’s or the business sector’s competitiveness
- Termination of the business
Redundancy of one or more employees for economic reasons is strictly circumscribed by, and conforms to, a particular procedure that differs according to the size of the company’s workforce (companies of less than 50 employees, or of at least 50 employees) and the number of employees involved in the redundancy (less than 10 over a period of 30 days, or at least 10 over the same period).
When, over the same period of 30 days, the redundancy of a single employee is envisaged, the employer applies the procedure that is applicable to individual redundancies.
For a redundancy of less than 10 employees over the same period of 30 days, the employer is required to consult with the employee representatives.
In companies with fifty or more employees, the employer is required to establish a job protection plan to avoid redundancies or minimize the number thereof.
This plan includes a provision for the reassignment of employees whose redundancy would be hard to avoid, particularly older employees or those whose labour characteristics or qualification render their professional reintegration particularly difficult.
An employee is deemed to work part-time when his working hours are less than the legal workweek (35 hours a week), or less than the working time that is set by the collective labour agreement or that which is applicable in the particular establishment (if the latter is less than the legal workweek).
What are the mandatory provisions required for part-time contracts?
A part-time employment contract is a written contract that must include certain mandatory information such as: the employee’s qualification, the elements of remuneration, the working time, the distribution of working time between days of the week or weeks of the month (unless otherwise stipulated), etc.
The employer must consider a number of questions prior to the signing of a part-time contract:
- What is the minimum working time?
- What are the legal requirements regarding the working hours of a part-time employee?
- Can the employee refuse a change in the distribution of his working time?
- Can the employee work more hours than are specified in his contract?
- What is the remuneration for overtime?
- Can the employee refuse to work overtime?
- Can the employer ask the employee to temporarily work beyond the time specified in his employment contract, in order to deal with a temporary increase in the business?
We are available to assist you regarding all of these issues throughout the hiring process and the drafting of the employment contract.
Termination of an employment contract by mutual consent is an agreement signed by both the employer and the employee pursuant to which the two parties decide to bring the employment contract to an end.
This type of termination called "rupture conventionnelle" entitles the employee to unemployment insurance if he does not find a job, which is not the case when an employee unilaterally resigns.
We are available to assist you regarding all of issues throughout the process of mutual termination of the contract
Whether you are an employer or an employee, the Firm is qualified to assist and represent you before all courts and governmental agencies in France, wherever they are located.
We advise you at all stages of the proceedings and represent you before all courts in matters of labour law:
- Labour Court (Conseil de Prud’hommes)
- Social Security Court (Tribunal des Affaires de Sécurité Sociale)
- Court of Appeal (Cour d’Appel)
We are also qualified to edit Adviser's certificate in case of international settlement agreement.
Hiring in France (even without legal entity)
You are a foreign company that wishes to hire an employee in France but you do not wish to create a subsidiary or a legal structure in France.
We are here to help you. Our firm takes care of all the steps from the drafting of the employment contract, the registration of the employee with the various organisations in France to the pay slips.
Posting of employees
If your company wants to post employees temporarily in France, you must comply with several requirements and apply certain provisions specified in the French Labour Code, particularly regarding employees’ pay, working time and working conditions.
These regulations apply in situations where an employer, regularly based outside of France, gives its employees a specific assignment that must be carried out in France, with the intention that, once the assignment has been completed, the employees will return to their home country to work.
The rules for foreign-based companies’ transnational posting of workers to France apply to categories defined as follows:
Provision of services: The term "services" includes all activities of a commercial, industrial or agricultural nature carried out under a contract between a service provider and a beneficiary for an agreed upon price. It is especially applicable to all subcontracting operations (construction work, for example).
Intracompany mobility: Provision of staff for non-pecuniary purposes between subsidiaries of the same company or departments within the same company, for carrying out an assignment or for a period of training, for example.
Provision of employees for temporary work: A temporary employment agency, usually established abroad, may post employees to a user company in France.
Work on the company’s behalf: For example, a foreign company that owns fields in France temporarily posts its employees for harvesting crops.
Formalities
Before providing the service, the employer must send a pre-assignment declaration in French to the “direction départementale du travail” (local labour authority) in the area where the service will be provided (or the first place of business, if the service will be provided in several places), by registered letter, fax or email.
Legal Representative
Appointing a Representative in France is compulsory. Said representative will be on French soil for the duration of the posting and shall liaise with inspection agents,holding certain documents at their disposal, and which he may disclose to them in paper or electronic format.
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What rules must be applied ?
During the posting of their workers in France, employers must comply with French rules on certain matters that are stipulated in a comprehensive list in article L. 1262-4 of the Labour Code.
The "French rules" cover:
Employers must therefore comply with the French provisions that apply to employees' terms of employment and working conditions. |