In order to further combat the illegal secondment of foreigners to France, the French Social Security Law for 2017 implements a new procedure which enables the Labor Inspectorate to better monitor the situation of seconded employees and to penalize companies who fail to comply.
In principle, even though there is no maximum secondment duration from a labor law perspective, social security provisions do impose limits on the duration for which seconded employees can remain under their home social security schemes - 24 months for secondees from Europe while for other countries, the duration is set by the applicable bilateral agreement. Employees seconded for periods which exceed these limits should be affiliated to the French social security scheme and therefore pay social security contributions in France.
From 1 April 2017, for all employees performing a secondment in France and subject to another country's social security scheme, the employer or the representative of the company in France must provide to the French Labor Inspection services with the social security form issued by their home country (referred to as "formulaire A1" in the EU). In practice, this document should be kept at the employee's place of work and at the contractor's premises in France (for instance at the headquarters of the construction company).
In case of non-compliance with this obligation, the company's contractor in France can be sanctioned to a financial penalty of EUR 3,269 for each affected employee. The amount of the penalty can be doubled if there is a repeated offence within 2 years. The penalty can potentially be avoided if 2 requirements are met:
- The employee is able to provide to the Labor Inspector a document proving that he/she has filed the relevant application form; and
- The employee provides required certificate within 2 months from the Labor Inspector's request.
In view of these changes, it is essential to ensure that seconded employees are covered by the right social security scheme, and that mandatory secondment and immigration formalities have been complied with before the secondment takes place.