Posting of foreign workers in France

EY law firm France and the Welcome Office of Business France introduce the practical information regarding posting of foreign workers in France

The transposition of the European Directive 2018/957 into French law represents the opportunity for the Welcome Office and the law firm EY France to review the posting regulations of international talent which are in constant development.

In the context of the posting of foreign employees to France, the transposition of the EU directive expected on July 30, 2020 strengthens the obligations of companies.

The most important new measures that will be applicable in the French law are the following:

• Posted workers must receive remuneration equal to that of local employees: “For equal pay, equal work».
• All the rules valid for local workers (seniority, bonus, thirteenth month …) will apply to posted workers.
• If in immigration the duration of the posting remains possible up to 36 months maximum within the intra-group secondment, in labor law the hard core will only apply for the first 12 months.
  A compulsory change of regime under the labour code is therefore applicable as of the 13th or 18th month of posting for all posted workers in France.

Posting of workers means the possibility for a foreign company to send employees to France on a temporary basis to carry out a temporary assignment on behalf of the foreign company. The employer has a number of obligations with which it must comply before its employee’s assignment, in particular in regard to immigration, labour law and social security. The posting maintains the initial employment contract between the employer and the employee and asserts the existence between them of an employment relationship, characterised by the maintenance of a relationship of subordination, the payment of remuneration and the performance of work on behalf of the employer (not on behalf of the French company which hosts the posted employee). The posting of an employee occurs when the employee usually carries out his work “outside the national territory” for an employer established outside the national territory.

This concept of posted employee is also used in social security law in a slightly different sense – posting in social security law allows an employee not to be affiliated with the regime of the country in which he or she works and therefore to remain affiliated with the scheme of the country in which his or her employer is located. This situation is temporary and the duration of the posting is set by the regulations applicable within the European Union and by Bilateral International Treaties (between two States).

In order to simplify the procedures to be carried out by the employer, the new French rules distinguish between short and long-term postings. Until now, the same rules applied to both situations. The formalities of short-term postings have been simplified, making it easier to carry out an assignment.

The prior declaration of posting

Before the start of a service in France, an employer established outside France who posts employees in French territory must send a prior declaration of posting to the labour inspectorate of the place where the service will be provided. This declaration is done electronically.

One exception is introduced into the reporting obligation for short assignments of no longer than 90 days over 12 consecutive months:

• Artists* ;
• Athletes, referees and members of support teams for athletes, official delegates attached to the practice or organisation;
• Apprentices on a temporary mobility posting in a company or establishment located in France;
• Professors and researchers at scientific conferences, seminars and events as well as teaching activities on an occasional basis.

*This exemption concerns the fields of performing arts, film and audiovisual production and broadcasting and phonographic publishing. This exemption excludes activities for assembling or dismantling temporary equipment or facilities, catering, transport, monitoring and site safety.

The obligation to designate a representative of the employer

Any employer located abroad must designate a representative in France who will liaise between this employer and the labour inspectorate in particular.

The designation of the representative is done in the prior declaration of posting. This designation must cover the entire period of posting.

The representative shall fulfil the employer’s obligations, and in particular that of retaining documents relating to the posting that he or she shall make available to the State’s inspection agents.

For short-term assignments and one-off events involving artists, athletes, apprentices, teachers, an exemption from the requirement to designate a representative is provided for, in addition to the exemption relating to the prior declaration of posting.

Facilities granted for posting on own account business

If there is no contract with a recipient of a service in France and an employee is posted by his or her employer, this is a posting for own account. This is the case, for example, of a journalist working for an employer abroad who comes to cover an event in France. He or she does not come to respond to an offer to provide services in France but he comes on his or her own account.

In this specific context, the employer will no longer need to make a prior declaration of posting or to appoint a representative in France.

A maximum period of 15 days is allowed in the event of inspection by the labour inspectorate. Thus, when a commercial contract is signed between the service provider and the service recipient, the following documents must be presented to the labour inspector:

• Work permit to engage in salaried activity;
• Document certifying a medical examination;
• Actual salary payment slips;
• Statement of hours worked;
• If the duration of the posting is greater than or equal to one month, the payslips must include the following information:
  • Minimum wage (including increases for overtime)
  • Working hours and period to which the salary relates
  • Holidays and public holidays
  • Conditions governing liability to holiday insurance and bad weather schemes
  • Title of the branch collective agreement applicable to the employee
• If the company is established in a country outside the European Union, the document certifying its compliance with a social security agreement or the certificate of social declaration provided by the French social protection agency responsible for collecting social contributions (less than 6 months old);
• Employment contract;
• Document certifying the law applicable to the contract binding the employer and the recipient of the service in France;
• Document certifying the number of contracts completed and the amount of turnover generated by the employer in its country of establishment and in the national territory.

In the absence of a commercial contract between the service provider and the recipient, no deadline is envisaged for submitting the above documents. However, a maximum period of 15 days is authorised for the following documents:

• Document certifying a medical examination;
• If the company is outside the European Union, the document certifying its compliance with a social security agreement or the certificate of social declaration provided by the French social protection agency responsible for collecting social contributions (less than 6 months old);
• Employment contract;
• Document certifying the law applicable to the contract binding the employer and the recipient of the service in France;
• Document certifying the number of contracts completed and the amount of turnover generated by the employer in its country of establishment and in the national territory.

Administrative requirements

Certain arrangements are provided for companies regularly posting employees insofar as they respect the essential principles of labour law.

The following documents may be requested by the competent DIRECCTE (Labour Office in charge of the procedure) by the company for a period of one year (renewable):

• the prior declaration of posting;
• the designation of the representative;
• the translation into French of the documents to be provided to the labour inspectorate.

Controls and sanctions relating to the posting of workers

New control methods are planned to facilitate co-operation with employers. In addition, some sanctions for non-compliance with posting rules have been amended and others have been added.

The objective is to perfect a system of controls and sanctions and adapt it to the situations encountered by the inspection agents in order to be in a position to cover all situations. These mechanisms are facilitated so that they do not represent a significant obstacle to companies that respect labour law, but they also make it possible to quickly end any breaches.

Alisa Sakic Second, Head of Welcome Office, Business France
Anne-Elisabeth Combes, Partner and Leader of Employment & HR Law, EY France