Author firm: Capstan

‘Employment’ Act

Central place for collective bargaining

The ‘Employment’ Act of 8 August 2016 has initiated the rewriting of the labour code: collective agreements must become central and the law must become more subsidiary.

In concrete terms, the labour code will set out for each of its ‘themes’:

  • public order rules (which can not be changed or negociated);
  • measures that can be negotiated;
  • the measures that apply in the absence of an agreement.

Working time and holiday rules are being recast immediately in accordance with this new ‘method’. The rest of the labour code will be reformed in the years to come.

Conditions for collective bargaining are facilitated and seek to improve the pace of collective bargaining. Since many more fields will open to negotiation, the law strengthens the conditions of validity of agreements. Agreements will be valid if concluded with trade unions:

  • representing 50% of employees (30% previously);
  • or representing 30% of employees, but the agreement is validated by referendum.

Religion at work

The law authorizes a company's bylaws to affirm the principle of neutrality at work (religious as well as political) and to restrict the expression of employees' convictions if these restrictions are justified by the exercise of other fundamental rights and liberties or by the necessities of proper functioning of the company and if they are proportionate to the aim sought.

Agreement for the preservation or promotion of employment

A collective agreement cannot normally modify an employee's employment contract.

The law provides that if a company collective agreement is concluded to preserve or promote employment, its provisions automatically replace the conflicting and incompatible clauses of the employment contract, including remuneration and working time. If the employee refuses, he can be dismissed by the employer.

Definition of “economic difficulties” for dismissals on economic grounds

Previous law: A dismissal on economic grounds is defined as a dismissal for reasons which are not related to the person of the employee and that results from the elimination of a position or the employee’s refusal of a substantial change to his/her employment contract proposed by the employer.

The job elimination or the change to the employment contract must be linked to (i) economic difficulties (the French Labour Code does not provide a legal definition for this term), (ii) a technological change, (iii) the total and definitive cessation of the company’s activity or (iv) a need to reorganize the company in order to protect its competitiveness. In all of these cases, where the company is part of a group, the existence of a valid economic reason is evaluated at the level of the group or, where the group has multiple sectors of activity as defined by law, the group’s sector of activity to which the company belongs.

The ‘Employment Act’: The job elimination or the change to the employment contract must be linked to:

(i) economic difficulties: the Employment Law defines “economic difficulties” as being characterized by (a) a decrease in orders or in turnover over several consecutive quarters in comparison with the same period during the previous year, or (b) operating losses over several months, (c) an important decline in its cash position, (d) an important decline in gross operating surplus or (e) any elements that are likely to justify the existence of the “economic difficulties”.

(ii) a technological change,

(iii) the total and definitive cessation of the company’s activity, or

(iv) a need to reorganize the company in order to protect its competitiveness.

Right to disconnect professional communications tools

Previous law: The French Labour Code does not provide any rights for employees to disconnect professional communications tools. This right is provided in certain industry-wide collective bargaining agreement.

The Employment Act: All companies have to define the terms under which employees may exercise their right to disconnect their professional communications tools. These terms should be set by a CBA; however, in the absence of such a CBA, the company must set the terms.

Elimination of the pre-employment medical examination

Previous law: with few exceptions, all employees must receive a medical examination to certify his/her ability to perform his/her duties before starting a new position or, at the latest, before the end of his/her trial period.

The Employment Act: the examination described above is replaced by an “information and prevention visit” with the occupational health doctor that will take place after starting a new position. Only employees holding positions with particular risks for their health, their safety or for their colleagues must receive a medical examination to certify their ability to perform their duties before starting a new position.

Maternity leave

Previous law: the employee coming back from her maternity leave benefits from a strong protection against dismissal during a period of four weeks as from the end of her maternity leave. The second parent also benefits from the same protection as from the date of birth of the child. During this period, the employee can be dismissed only in case of (i) serious misconduct or impossibility to maintain the employment contract.

The Employment Act: the protection above is extended to ten weeks as from:

  • the end of the employee’s maternity leave or (ii) the end of the her vacation, in the event that the employee is on vacation directly after her maternity leave.;
  • the date of birth of the child for the second parent.

Protection of whistleblowers and the fight against corruption

Whistleblowers

The law of 9 December 2016 creates a system of protection for whistleblowers. A whistleblower is defined as a person who discloses in a disinterested and bona fide manner, a crime or an offense, a serious and manifest violation of an international commitment ratified or approved by France or a serious threat or prejudice to the public interest. Facts, information or documents covered by the secrecy of national defense, medical secrecy or the secrecy of relations between a lawyer and his client are excluded from these provisions.

Within the company, the whistleblower must first inform his manager or his employer. It is only if there is no reaction within a reasonable period of time that he can inform the public authority.

In addition, appropriate procedures for the collection of alerts issued by members of their staff or by external and/or occasional employees must be established by companies with fifty or more employees.

The whistleblower cannot be discriminated against or sanctioned for having issued an alert in accordance with legal procedures.

Fight against corruption

Companies with 500 or more employees and whose annual turnover exceeds 100 million euros will be obliged to take measures to prevent and detect corruption. This obligation applies as from June, 2017, 1st.

This includes:

  • drafting a code of conduct incorporated in the company’s bylaws;
  • putting in place an internal warning system;
  • establishing a “mapping of the risks”;
  • providing procedures for assessing the situation of customers, suppliers;
  • having accounting control procedures;
  • organizing training;
  • organizing a disciplinary system to sanction employees in case of violation of the company's code of conduct;
  • organizing a system for internal monitoring and evaluation of the measures implemented.