Actance Tribune
What's NEW under French Employment Law?
N° 25 – March 4, 2024
Focus on hiring foreign employees in France
In France, when an employer wishes to hire a foreign worker, he must follows various administrative formalities, different depending on the worker’s country of origin.
Please note that employers are prohibited from hiring or retaining a foreigner who does not have the official document permitting them to carry out salaried activity in France.
- The required work permit
There are 3 types of work permit:
- a residence permit serving as a work permit (for example: residence permit, multi-year “talent” residence permit, “private and family life” residence permit, etc.);
- a residence permit and a separate work permit;
- a visa equivalent to a residence permit and work permit.
This is mandatory:
- whatever the nature of the employment contract or its duration;
- whether the foreigner is outside France or in France at the time he is to be recruited.
Specific cases:
Certain foreign workers are exempt from requiring a work permit based on their nationality. Thus:
- if the employee is a citizen of a member country of the European Union, the European Economic Area or Switzerland, they do not need to apply for a work permit;
- however, if they are a citizen of another country, they require a work permit. One should also check if there is a possible bilateral convention that has been concluded between the two States.
2. The practical work permit application
By who?
- The work permit request must be made by the employer or by an authorised representative with a written mandate.
- When this concerns an employee temporarily seconded by a company not established in France, the request shall be made by the principal established in France or by the user company.
When?
- The request shall be made prior to hiring the foreign employee. The employment contract cannot be established before the administration’s response.
How?
- The permit application procedure is done online. The employer must go to the ANEF (Digital Administration for Foreigners in France) website.
What information is required?
Among other things, the employer must provide the following information:
- information on the identity of the future foreign employee;
- information on the employment offered to the future foreign employee.
The list of supporting documents to be provided to the administration can be found on the ANEF website or in the text of the decree of April 1, 2021.
What is the deadline?
The decision to grant a permit is taken by the Prefect.
The latter has a legal period of two months to render their decision from filing of the request. The employer or representative who submitted the request, as well as the foreign national, will be notified of the decision.
No response within the two-month period constitutes a rejection of the application.
What tax does the employer pay?
- An employer who hires a foreign worker or who hosts an employee temporarily seconded by a company not established in France must pay a tax to the French Office of Immigration and Integration (OFII) upon the first entry into France of this foreigner or their first acceptance to remain as an employee.
For an employee whose contract duration is at least 12 months, the tax is 55% of the gross monthly salary (limited to 2.5 times the French minimum wage) and is paid only once, within 3 months.
Summary diagram of the hiring procedure
News
France recently adopted a law aimed at controlling immigration and improving integration.
The text contains 27 articles with some measures concerning labour law.
New residence permits entitled “work in shortage occupations”
The law creates a one-year temporary residence card, equivalent to a work permit, issued automatically upon request for a foreign worker in an irregular situation who is employed in a “shortage occupation” and who meets certain conditions, without any formalisation process by the employer.
On an experimental basis until December 31, 2026, this residence card shall be issued:
- provided that the person is in a salaried professional activity appearing in the list of occupations and geographical zones in shortage for at least 12 months, consecutive or not, during the last 24 months and holds a job title falling within these occupations and zones at the time of the request;
- and proves continuous residence of at least three years in France.
The residence permit shall also be a work permit and take the form of a secure document.
A circular note from February 5, 2024 provides details about the procedure for obtaining the new “work in shortage occupations” residence permits.
The list of occupations and geographical areas in shortage shall be established and updated once a year by the administrative authority following consultation with the social partners.
Tougher sanctions for employers of undocumented workers
The law also introduces an administrative fine for employers hiring a foreigner who does not have a permit for a salaried activity in France (the amount can be up to 5,000 times the hourly rate of the minimum wage guaranteed per foreign worker concerned).
At the same time, the amount of the criminal fine was increased from €15,000 to €30,000 per foreign worker concerned and its scope was extended to the case of the employment of a foreigner in a professional category, an occupation or a geographical area other than those mentioned on their job title.
Labour inspection: a key player in labour relations in France
The labour inspectorate is an administrative body structured around central services with domestic jurisdiction (for example: French General Labour Directorate) and decentralised departments (DREETS, which include the inspection units). The latter includes labour inspectors, responsible for ensuring the proper application of labour law in companies.
These agents are independent and are subject to various obligations (impartiality, confidentiality, respect for professional secrecy).
In France, at the end of 2020, the Labour Inspectorate had 4,100 agents, almost half of whom were inspectors.
The missions of labour inspectors are quite extensive, since they must, in particular:
- ensure compliance with labour law legal provisions: he monitors the application of all aspects of labour law by companies (French labour code, conventions and collective agreements): health and safety, functioning of staff representative organisations (Work Council (“Comité Social et Economique”) in particular), working hours, employment contract, illegal work;
- take decisions: the employer must, in specific cases, obtain permission before acting (for example, exemptions from maximum working hours, dismissal of a protected employee).
The means of action of labour inspectors are also varied and they have broad powers of investigation which allow them in particular to:
- access and visit the company without prior warning;
- conduct an investigation, in particular by questioning employees;
- be presented, during their visits, with mandatory documents required by the French Labour Code and by any legal provision.
They are also free to organise and conduct inspections on their own initiative or at the request of an employee or staff representatives, and to decide what action to take. A labour inspector can specifically visit a company following a call from an employee reporting any offences including harassment, discrimination or concealed work, etc.
The findings of labour inspectors may give rise to :
- Observations, written or oral, intended for the employer reminding them of the current regulations,
- A formal notice to comply with the regulations,
- A report for criminal offenses. These reports are then sent to the Public Prosecutor who decides whether or not to initiate proceedings;
- Referral to the interim proceedings judge to obtain the suspension of an activity;
- A decision to temporarily stop any activity presenting a serious and imminent danger.
Any employer who challenges the decision of the labour inspectorate may decide to file an administrative or contentious claim.
Finally, should an employer decide not to respond to a request from a labour inspector (e.g. refusal to communicate documents), they shall be exposed to the offense of obstructing the duties of the inspector. This offense is punishable by one year of imprisonment and a fine of €37,500.
Note
In France, the labour inspector is a key player in labour relations. His role is not only to control companies and possibly sanction them. He also has an important advisory role for employers who can consult them.