The “Future Career” act: new developments in the posting of employees in France

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The “Future Career” act: new developments in the posting of employees in France

In addition to the training, apprenticeship and unemployment benefit reforms, the “Act for the freedom to choose one’s future career”, enacted on 5 September 2018, provides for a number of measures relating to the posting of employees in France.

 

 

A change in the definition of posted worker: the law adds to the definition found in article L. 1261-3 of the French Labour Code, providing that work ordinarily performed for an employer based outside France must itself be performed outside France. The aim is to prevent employers based abroad from abusing the rules of posting in France with regard to their employees, who, in reality, are already performing their ordinary job in France, rather than in the country in which are purported to work and from which they have been “temporarily” posted.

 

  • Easing of certain posting rules:
    • Employers that post workers on a regular basis may submit an application to government authorities to streamline the posting procedure (prior declaration of posting, appointment of a representative in France and keeping French-language documents in France). In support of their application, they will have to provide evidence of their compliance with the legal and contractual rules in the “core” matters of French employment law that apply to posted workers in France (individual freedoms, the right to strike, minimum wage, etc.). The arrangements granted to employers, the nature of which will be set out in a future decree, will last for a maximum of one year.

       

    • Employers that post one or more employees for short-term services or operations or as part of one-off events may, under certain conditions, be exempted from making a prior declaration of posting and appointing a representative in French territory. However, this will only concern posted employees who perform jobs included on a list that will be set out in a future decree.

       

    • Since 7 September 2018, employers that post an employee on their own behalf are exempt from making a prior declaration of posting and appointing a representative in France.

    • In addition, adjustments will be made by decree to the obligation to keep and make available documents in French.

       

    • Finally, the Employment Code has been updated to reflect the elimination of the “stamp duty” (a flat rate contribution of €40 per posted employee), repealed by decree on 9 February 2018.

  • Heightened sanctions:

     

    • The administrative fines specific to transnational postings have been doubled from €2,000 to a maximum of €4,000 per posted employee. They rise to a maximum of €8,000 per posted employee if employees commit a second offence within two years (as compared to one year, before) of the date of notification of the first fine.

       

    • The obligation of due diligence incumbent upon principals and clients is now stricter: from the moment they enter into a contract with a service provider that posts employees in France, they must now verify that the employer has paid its administrative fines.

       

    • If an employer based in a foreign country does not pay the fines, government authorities can now suspend the provision of services, or even prohibit it for a renewable period of two months. If the service begins in spite of the suspension order, the employer will incur an additional fine of up to €10,000 per employee in question.

       

    • Lastly, the law creates a new offence of “concealed work” (travail dissimulé). This offence occurs any time an employer makes use of the laws governing posted employees when, in fact, it is merely carrying out activities within its territory consisting solely of internal or administrative management, or conducting business in France in a regular, stable and durable way.

 

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