Actance Tribune
What's NEW under French Employment Law?
N° 15 – April 10, 2023
Hiring foreign workers: points of vigilance
Given the growing difficulties in recruiting combined with the lack of manpower for certain functions, companies are increasingly recruiting foreign employees as a solution.
In general, to be employed in France, nationals of the European Union (EU), of the European Economic Area (EEA) (Iceland, Norway, Liechtenstein) and of Switzerland do not require a Work Permit or Authorisation.
When a candidate is not an EU national, the company must ensure that they have a certain number of documents:
- residence permit,
- work authorisation.
Verification of the work authorisation
If a foreigner who does not fall under one of the work permit exemptions states that they hold a work permit, the employer must check with the competent national authorities that the work authorisation document to the employed activity in France exists.
For this, the employer must contact the department prefect. The prefect usually answers the request (by post or e-mail) within 2 working days.
Should the foreign candidate hold a residence permit that does not allow them to be employed in France, the employer must submit the application for a work authorisation to the relevant Prefect.
OFII tax
The employer must pay a tax to the French Office for Immigration and Integration upon the first entry into France of a foreign worker or on their first admission to remain in the country as an employee.
The amount varies according to the type of job, the duration of the contract and the salary.
What to do if a hired employee is not in good standing?
Suspension
Should the residence permit expire during the contract, the foreign employee must renew it and their work permit.
If the employee has made their request within the time allowed, the prefecture will issue them with a receipt for the renewal of the residence permit which also constitutes a work permit.
If they do so after the deadline and if no receipt is issued, the employment contract must be suspended pending the Prefecture’s response.
Dismissal
The foreign worker in an irregular situation, whether from the outset, due to an absence or a refusal to renew a valid permit, may be dismissed simply for this reason: the irregular situation of a foreign worker is an objective cause justifying the contract termination.
Penalty incurred by the company
An employer who retains an employee with an irregular situation may be subject to penalties, primarily:
- a €15,000 fine applied for each unduly employed foreign employee and five years’ imprisonment;
- a special contribution to the French Office for Immigration and Integration (OFII) of 5,000 times the guaranteed minimum hourly rate. This amount is reduced to 2,000 times the rate when the offense concerns only one irregular employee and increased to 15,000 times this same rate in case of a repeat offense within five years.
Our firm remains at your disposal to provide support on these issues.
The individual conventional termination procedure: pitfalls to avoid
A company and their employee can agree on the principle and the terms of employment contract termination via the conventional termination.
This widely used procedure requires a certain number of steps to be followed in order to ensure it functions correctly.
We offer you a detailed analysis of this procedure, which completes our publication from June 2022 which you can find here.
Employer/employee interviews
During the first stage, the employer and the employee jointly work out the principle and the methods of the conventional termination during interviews.
No particular form is imposed concerning the invitation to interviews and holding them, nor is there a defined way in which the employee could be notified that they have the right to support. However, the Administration has noted that the interviews must be organised in good faith, which they say requires the employer to inform the employee of the interview date and place as well as the possibility of having support.
It is therefore preferable that the employer informs the employee in writing of their rights, particularly regarding support, and the way in which the whole procedure will take place. They thus have proof in case of a possible litigation.
Should there be no proof of an interview, a judge could cancel the agreement at the request of the employee if the latter is able to prove that no interview had taken place even if the signed and approved agreement indicates the contrary.
Conclusion of a mutual agreement
The second stage is formalised by signing a mutual agreement which defines:
- the contract end date;
- the amount of the indemnity due to the employee, which cannot be less than the dismissal indemnity.
Fixing the conventional termination date
The employer and the employee set the termination date of the employment contract in the termination agreement, which cannot be earlier than the day after approval by the Administration.
They can postpone the termination date of the employment contract after the approval of the termination agreement, to a date that suits all parties, while defining it precisely.
Approval application form
Once the employer and the employee have agreed on the content of the conventional termination, they must complete a form requesting its approval.
Should any mandatory information (date and signature) be missing, the conventional termination may be cancelled.
Delivery of a duplicate to the employee
A duplicate of the form must be given to the employee. Failing this, the employee cannot exercise their right of withdrawal.
When no duplicate has been given to the employee, the latter can obtain invalidity of the conventional termination.
The employment contract termination then has the effects of an unfair dismissal without real and serious cause, with all the financial consequences that this implies for the employer.
We recommend that the delivery of the copy to the employee is done with a receipt.
Right to withdrawal
The employer and the employee both have a period of 15 calendar days to withdraw.
Whichever party uses this right shall inform the other party in writing. Thus, the withdrawal shall not be valid if it is addressed only to the Administration.
For the Administration, non-compliance with the reflection period substantially undermines the procedure and itself alone justifies the refusal of approval.
Approval of the conventional termination
The last stage, which consists in requesting the conventional termination approval, is carried out with the DREETS who ensure compliance with the formal conditions and the freedom of consent of the parties.
Indeed, at the end of the withdrawal period, the first party to act (in practice, the employer) sends a request for approval to the DREETS.
The application for approval must be made via the teleservice (www.teleRC.travail.gouv.fr).
From the day after receipt of the application for approval, the DREETS has 15 working days to make a decision.
If there is no response, the DREETS is deemed to have given an implicit approval decision.
The contract may be terminated the day after the decision, whether it is notified or implied.
Our Firm is at your entire disposal to support you throughout this procedure.
How to react to a request for access to personal data (article 15 of the GDPR)
The European General Data Protection Regulation concerning personal data (GDPR) has strengthened the possibility for data subjects, and specifically employees, to exercise their rights over their personal data with their employer in order, in particular, to be able to access this data and to correct it if necessary.
Reinforcement of the exercise of rights has generated, since the entry into force of the GDPR in May 2018, a sharp increase in requests for the right of access, in particular in connection with Labour Court disputes.
Increasingly confronted with requests for the right of access made by employees or former employees or by rejected candidates, employers must learn how to react quickly.
What precisely is the right of access?
The right of access is specifically enshrined in Article 15 of the GDPR, which allows the data subject to obtain:
- from the data controller, for example the employer, confirmation that personal data concerning them are or are not processed in their files, whether it be computer processing or paper files;
- access to said personal data concerning them if processed, in an understandable format, to verify the content and accuracy;
- certain other information on the processing of their personal data (specifically the purposes, the categories of personal data concerned and the recipients).
How is the right of access exercised?
Practically, this right is exercised most of the time directly with the employer, on site or remotely (by email or by post).
The employer then has one month to respond.
However, for a complex request or a large number of requests to the employer, the deadline for the latter to respond is extended by two months, bringing the response deadline to three months.
This time extension must be justified by the employer.
Please note that the employee exercising their right of access does not have to justify their request.
Justifying a refusal to respond to a right of access
It is possible for the employer to refuse to act on a right of access. The refusal must always be justified and information on the means and deadlines for an appeal to challenge this decision must also be communicated.
Refusal shall indeed be possible in case of:
- manifestly unfounded or excessive requests, specifically those of a repeated or systematic nature;
- personal data already erased from the employer’s files in accordance with the legal provisions and the retention periods so defined. For example, in recent case law, the argument put forward by an employer justified refusal via the response from their IT director stating that the employee’s mailbox was deleted within 90 days after the termination of the employment contract, according to the internal policy of the company on data protection, and it was upheld to dismiss the request made by the employee (CA Paris, 6-2, May 12, 2022, RG n° 21/02419).
What are the limits to the right of access?
The right of access concerns only the data and not the media.
So, the employer must therefore communicate the personal data of the employee that they possess (for example: surname, first name, address, salary, etc.), but not the files in which this data is listed.
Our Firm can provide support if you are faced with a request from one of your employees to access their personal data.