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Employment Law Overview France 2019-2020 Flichy Grangé Avocats / Proud Member of L&E GLOBAL

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Employment Law Overview France 2019-2020 Flichy Grangé Avocats / Proud Member of L&E GLOBAL an alliance of employers’ counsel worldwide EMPLOYMENT LAW OVERVIEW FRANCE 2019-2020 Flichy Grangé Avocats / Proud Member of L&E GLOBAL www.leglobal.org TABLE OF CONTENTS. I. GENERAL OVERVIEW 01 II. PRE-EMPLOYMENT CONSIDERATIONS 07 III. employment contracts 09 IV. wORkINg conditions 11 V. ANTI-Discrimination LAws 14 VI. SOCIAL MEDIA AND Data Privacy 16 VII. AuThorisations fOR ForeigN Employees 17 VIII. Termination Of Employment contracts 18 IX. Restrictive Covenants 23 X. TRANSfER Of uNDERTAkINgS 25 XI. TRADE uNIONS AND EMPLOYERS ASSOCIATIONS 27 XII. EMPLOYEE BENEfITS 32 an alliance of employers’ counsel worldwide I. GENERAL OVERVIEW 1. INTRODUCTION In France, employment law affords employees a good level of protection. Nevertheless, this legal environment is constantly changing as a result of government reforms and case law evolution. Recent trends relate in particular to: (1) union representation and collective bargaining agreements; (2) working time; (3) mutual termination agreements; (4) senior management compensation; and (5) termination packages in listed companies. In France, choosing the wrong option may result in costly individual or collective litigation. • Case law: The provisions of the Labour Code are 2. KEY POINTS interpreted through decisions of the employment law section of French the Supreme Court (“Cour • All non-EU citizens need a work permit to work. de cassation”). • Employers and employees are free to negotiate • Collective Bargaining Agreements (“CBAs”) the terms and conditions of their employment (“Conventions collectives”): Collective relationship. However, employees have various Bargaining Agreements are written agreements, minimum rights under the law, regardless of any entered into between one or more employee provision to the contrary in their employment representative trade unions and one or more contract. employer representative organisations. They • Usually, employees work 35 hours per week. Only govern individual and collective employment hours worked at the request of the employee’s relationships, working conditions and employee superior will be regarded as overtime. benefits in a given industry (e.g., the chemical, • Indefinite-term contracts: There must be real banking and pharmaceutical industries). and serious grounds for dismissal (two types of Collective bargaining agreements can be binding valid grounds: personal grounds and economic on all employers whose line of business is covered grounds). by the agreement. • Severance payments are only awarded if the • Collective company agreements (“Accords employee has the minimum length of service and d’entreprise”): These agreements, which apply to the relevant CBA provisions. specific companies, are signed by the employer and, in principle, trade union representatives 3. LEGAL FRAMEWORK present in the company. • Atypical agreements: At company level, Employment law in France is based primarily on the agreements may be entered into with the staff following sources, set out in order of priority: delegates or the Works Council rather than with trade union representatives and, in such a case, • The Constitution. they are defined as atypical agreements. They • European legal instruments: Consisting of EU law do not come under the category of collective (including Treaty provisions, EU regulations and company agreements. They are considered Directives and the case law of the European Court binding by the case law as a “unilateral of Justice) and the European Convention for the commitment” (“engagement unilateral”) of the Protection of Human Rights and Fundamental employer. Freedoms. • Common practices (“usages”): These are the • The Labour Code: Made up of laws, regulations general, fixed and constant practices of the and decrees, the Labour Code determines nearly employer. They concern, in particular, benefits every aspect of French employment law. EMPLOYMENT LAW OVERVIEW an alliance of employers’ counsel worldwide 2019-2020 / FRANCE | 1 granted to employees and some details regarding This has progressively changed, starting in 2008 the operation of staff representative bodies. The as far as working time is concerned, then in 2016, Company may revoke those common practices and most recently with the Macron labour law at any time, subject to notifying the staff reform that has created three different categories representatives and each individual employee or “blocks”: concerned, along with respecting a reasonable notice period (normally three months) between “Block 1” matters: the sectorial collective the notification of the employees and the agreement prevails over company agreements on revocation of the common practice. a list of 11 topics. For example, minimum wage provided for by the CBA cannot be derogated by a 4. NEW DEVELOPMENTS company agreement. “Block 2” matters: the sectorial agreement prevails Recently, the French government has profoundly over former company agreements if the sectorial modified employment law in France, through the CBA provides for it. This concerns 4 topics. For adoption of a major overhaul of key provisions of example, policies regarding the insertion of the French Labour Code. handicapped individuals into the workforce. The key aspects relate to the simplification of the All other subjects not included in the previous two staff representative structures and significant blocks constitute “Block 3”: Company agreement efforts to secure dismissals. There are plenty of prevails over the sectorial CBA. other measures of importance, as detailed below. NEW MAJORITY RULES FOR ENTERING INTO This reform accelerates the trends already initiated A COMPANY COLLECTIVE BARGAINING under President Hollande through three major AGREEMENT labour laws respectively entered into in June 2013, Under French law, company agreements are August 2015 and August 2016. entered into by the employer and the Union delegates (being employed in the company) having CHANGES TO NEGOTIATING COLLECTIVE been appointed by Unions based on the results of BARGAINING AGREEMENTS the votes in the first round of the last elections of By way of background, it should be noted that in the works council (only unions are able to present France, employers must comply with the labour candidates over this first round). code, but also with the applicable sectorial collective bargaining agreement (CBA), if any. A The principle of the majority collective agreement sectorial CBA is a collective bargaining agreement applies to all company agreements as of May 1, entered by Unions representing employees on 2018: to be valid, the agreement must then be the one hand and Unions representing employees signed by one or more trade unions that received on the national level in a defined business sector. 50% of the votes cast. Once extended by the Labour ministry, it becomes mandatory for any company whose activity falls However, if the signatory representative trade within the scope defined by the agreement. On union organisations only have 30 to 50% of the the other hand, a company may always enter into votes, it is possible to then use a new backup company collective bargaining agreements with plan: revert to a company referendum meaning Unions being present in said company. that all the employees’ opinions in relation to the agreement may be sought in order to render the The Macron reform provides for some important agreement enforceable. changes in this area. INCREASED CAPACITY TO ENTER INTO IMPROVED CAPACITY TO BREAK WITH A COLLECTIVE BARGAINING COMPANY SECTORIAL CBA’S AGREEMENTS IN SMALL COMPANIES OR Until recently, it was not possible to derogate to WITHOUT TRADE UNIONS sectorial CBA’s with a company-wide agreement, In France, some matters require a collective unless it was more favourable for the employees. agreement, such as the recourse to specific working EMPLOYMENT LAW OVERVIEW an alliance of employers’ counsel worldwide 2019-2020 / FRANCE | 2 time arrangements. Small businesses without Staff Representation: the CSE (The Social and unions were struggling to enter into an agreement Economic Committee) where needed. The Macron reform has therefore facilitated the ability to enter into an agreement, The Macron Reform has significantly simplified staff by enabling to sign, if no union would appoint representation in companies. Up to now, there have an employee, with an elected staff member or been three types of staff representative bodies, all even with the workforce directly, under a certain of which are chaired by the employer: conditions. • in companies with 11-49 staff: staff delegates SECURISATION OF COMPANIES’ CBA (délégués du personnel), Since case law can be quite unpredictable • in companies with 50 and above: staff delegates, a and because changes are commonplace, the works council, and a health and safety committee. Government wished to protect employers against consequences of a ruling invalidating an agreement The staff delegates were in charge of relaying or some of its provision, which would then trigger claims regarding the day-to-day working life of the consequences for the future, but also for the past, company staff, while the works council is mainly in as it is admitted that civil case law has a retroactive charge of economic matters, and the health and effect. The law now states that if it appears that safety committee deals with health and security the retroactive effect of that annulment will have matters. manifestly excessive consequences, there is the possibility for a judge to decide that the cancellation One of the main points in the Macron reforms
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