At a glance: hiring employees in France

Background information on applicants

Are there any restrictions or prohibitions against background checks on applicants? Does it make a difference if an employer conducts its own checks or hires a third party?

The employer may ask an applicant to provide information directly or through a third party to the extent that such information is necessary to assess the applicant’s professional capacities that have a direct link with the position and the applicant’s skills (article L1221-6 of the Labour Code). Except where the information is relevant in the specific context of the position, the employer may not collect private background information (eg, whether the applicant has a criminal or credit record, or a driver’s licence).

Are there any restrictions or prohibitions against requiring a medical examination as a condition of employment?

A medical examination is only mandatory as a condition of employment for an applicant that is intended to work in a particularly dangerous environment (eg, where employees are exposed to carcinogenic agents, lead or ionising radiation). This examination aims to verify that the applicant is not suffering from a disease that may affect their working environment and that they are physically capable of carrying out the job’s future duties. A medical examination is also mandatory for employees returning from maternity leave, leave for occupational disease, and leave of more than 30 days for a work-related and non-professional illness or accident. For other employees, an information and prevention visit shall take place before the end of the trial period and within the three-month period following the date of hire.

Regarding medical follow-ups, the industrial doctor sees each employee at least every five years. Particular provisions exist for certain employees. Disabled workers and night workers, for example, must see an industrial doctor at least every three years, and employees who hold high-risk positions must see an industrial doctor at least every four years with an interim visit. This period may be adapted to the employee’s health conditions.

Are there any restrictions or prohibitions against drug and alcohol testing of applicants?

The employer is not, in principle, entitled to ask questions about an applicant’s private life, which includes questions about health. Information relating to a health condition should only be given by the applicant to the medical staff during a medical examination or an information and prevention visit. The doctor may prescribe a drug or alcohol test if they think it is relevant in assessing the applicant’s ability to carry out the functions of the job. The applicant must agree to the test and must be informed by the doctor of the possible consequences. The results of the tests are not communicated to the employer; the doctor only indicates if the applicant can work.

If provided for by the company’s internal regulations justified by the nature of the position, and when employees have been duly informed and able to undergo a second test, an employer may be able to conduct an alcohol or drug test within the company itself.

Hiring of employees

Are there any legal requirements to give preference in hiring to, or not to discriminate against, particular people or groups of people?

An employer cannot give preference in hiring particular people or groups of people because it may be considered discrimination, which is prohibited by law.

Law No. 2018-771 of 5 September 2018 on the freedom to choose a professional future, enacted on 5 September 2018, reformed the existing framework to promote and simplify the employment of disabled individuals. Some of the existing obligations were revised, such as the obligation for employers with at least 20 employees to employ disabled individuals at the rate of 6 per cent of the workforce, which must now be revised every five years (6 per cent is now the minimum). Some of the provisions of this law include the extension of the reporting of disabled employees to all companies and the facilitation of telework for disabled employees.

Employers may still decide to hire disabled applicants, to outsource part of their activity to specified companies that employ disabled individuals or to pay a financial contribution to a dedicated agency in lieu. Employers may also comply with this obligation by applying a certified collective bargaining agreement providing for an annual or multi-annual programme in favour of disabled employees. Law No. 2015-990 of 6 August 2015 added three other ways in which to comply with this obligation:

• adapting the workplace to accommodate disabled undergraduate students for internship periods of at least 35 hours;
• offering a professional settling-in period of at least 35 hours; and
• offering subcontracting agreements or services contracts for independent disabled workers.

Temporary measures for hiring women or older applicants are also authorised.

Provided that an employee dismissed for economic reasons informs their previous employer that they would like to benefit from a re-hiring priority, the employer must inform and give priority to this employee for any recruitment for a position corresponding to the employee’s qualifications within the 12-month period following their dismissal.

Certain collective bargaining agreements provide for an obligation to give priority to internal employees in terms of applying for new positions.

Must there be a written employment contract? If yes, what essential terms are required to be evidenced in writing?

A written employment contract is mandatory in specific cases provided by law, such as when an individual is hired as a temporary employee, or is hired on a fixed-term or part-time contract. Restrictive covenants are also required to be in writing. A written employment contract is not strictly required under French law in other cases, although it is recommended for evidentiary reasons. Moreover, Council Directive 91/533/EEC of 14 October 1991 requires employers to provide a written agreement with the essential terms of the contract, such as:

• the names of the parties;
• the place of the work;
• the job position;
• a brief characterisation or description of the job position;
• the starting date;
• the term of the employment (for fixed-term contracts);
• the duration or, if not possible, the terms and conditions of annual leave;
• the duration or, if not possible, the terms and conditions of the notice period;
• the amount and components of the compensation;
• the daily or weekly working time; and
• applicable collective bargaining agreements.

A collective bargaining agreement may also impose an obligation to provide the employee with a written employment contract or with specific information.

To what extent are fixed-term employment contracts permissible?

The normal form of employment is the indefinite-term contract. Article L1242-2 of the Labour Code provides that a fixed-term contract may only be used to hire an employee to perform a precise and temporary task in factual circumstances, which are strictly defined in the article as follows:

• to replace an employee who is temporarily absent or whose contract is temporarily suspended;
• to temporarily replace an employee whose job is being eliminated;
• to temporarily fill a vacant job position while awaiting the arrival of a new employee (for a maximum of nine months);
• to deal with a temporary increase in business activity;
• to facilitate the hiring of certain categories of unemployed persons;
• to provide specific training to the employee; or
• to hire for seasonal work or in business sectors in which fixed-term contracts are standard practice.

Usually, the maximum duration of a fixed-term contract is 18 months, which may be extended to 24 months under specific conditions. There is no maximum duration when the fixed-term contract engages an employee to replace a temporarily absent employee.

Specific limitations or prohibitions apply to companies that have carried out a dismissal on economic grounds during the past six months, are hiring to fill a position requiring the performance of dangerous activities and are hiring to replace employees on strike. Also, the conclusion of successive fixed-term contracts with the same employee or for the same position is subject to limitations.

Subject to the existence of a specific provision in a collective bargaining agreement, fixed-term contracts may be signed with executives and engineers for a period of 18 to 36 months for the completion of a specific and defined project.

What is the maximum probationary period permitted by law?

For indefinite-term employment contracts, the mandatory probationary periods permitted by law are:

• two months for workers and employees;
• three months for technicians and supervisors; and
• four months for executives.

Longer probationary periods are authorised when they are provided by a collective bargaining agreement entered into before 26 June 2008. Shorter probationary periods are authorised when they are provided by a collective bargaining agreement or employment contracts signed on or after 26 June 2008.

Such probationary periods may be extended once, but only if provided for in the collective bargaining agreement and the employment contract. Such an extension, which is subject to the employee’s express consent, must be agreed to before the end of the initial probationary period. The duration of the probationary period, including renewal, cannot exceed:

• four months for employees and workers;
• three months for technicians and supervisors; and
• eight months for executives.

The probationary periods can be terminated after respecting a notice period of up to one month.

A fixed-term contract may provide for a probationary period that depends on the duration of the contract and may last for up to one month for contracts exceeding six months.

What are the primary factors that distinguish an independent contractor from an employee?

Among other case-specific elements, the primary factors that distinguish an independent contractor from an employee are that the contractor:

• does not carry out duties in a subordinate position to an employer;
• does not belong to the employer’s organisation;
• carries out the duties with their own equipment or in premises that are different from those of the user company;
• sends invoices for specific services rendered over a specific period;
• is not economically dependent on a single client but has several clients; and
• must have completed all relevant registration and declaration formalities to act as an independent contractor.

French labour law imposes a variety of requirements and obligations on the parties in an employment relationship that do not apply to independent contractors (eg, disciplinary regulations, working time regulations and paid holidays).

Is there any legislation governing temporary staffing through recruitment agencies?

Under French law, recruitment agencies must only carry out activities dedicated to providing temporary employees to their client companies. They are not allowed to conduct any other business.

When a temporary employee is made available to a client, two contracts are entered into:

• a service contract between the temporary agency and the user company; and
• a mission employment contract entered into between the employee and the temporary agency.

Although the temporary employee must comply with the working conditions that apply within the user company, their link of subordination remains with the temporary agency (ie, their employer).

The same conditions as those provided for in fixed-term employment contracts apply here.