Foreign employers posting employees to France temporarily, whether to provide services for a client based in France or for their own sake or as part of an intra-group mobility programme, must comply with strict legal requirements. These relate in particular to providing for those staff a set of mandatory employment rules applicable while they are working in France and also to prior notification to the French authorities of their intended posting and the appointment of a representative in France.
From 1st October 2016 employers have to make that notification on-line. For the posting of employees by road or maritime transportation companies, the compulsory certificates of secondment (which replace the prior declaration) will have to be done on-line from 1st January 2017 onwards.
This obligation results from Law n. 2015-990 of 6 August 2016 (“Loi Macron”), which was implemented by Ministerial Decree (n. 2016-1044) dated 29 July 2016.
This Decree also makes it compulsory for employers to inform the posted employees of their rights regarding their personal data and in particular that certain control agents (Labour Inspectors, officers and agents of the judiciary police, tax and customs officers, etc.) will be allowed to access this data for the performance of their function.
The sanctions for failing to comply with the legal framework for posting are heavy and have been recently increased. Administrative sanctions (€2,000 per employee capped at €500,000) apply to the failure to provide prior notification, appoint a representative in France or present to the Labour Inspector documents in French evidencing compliance with these rules. Failing to comply with the mandatory rules relating to minimum salaries, minimum rest or working time or work / lodgings conditions may entail the suspension of the provision of services (and a fine of up to €10,000 per employee in the event of breach of that suspension order).
In serious cases of non-compliance (large scale or repeated) which reveal fraud, criminal sanctions will be favoured.
The recently adopted “Loi Travail” (Law n. 2016-1088 of 8 August 2016) has reinforced even further this legal framework and applicable sanctions in case of breach. Foreign employers will also be liable to pay a fee for each employee they will send to France (a ministerial decree will determine its amount, which will not be more than €50).
More legislation is expected to continue reinforcing the control of this legal framework.
Lessons for employers
Though well-intentioned, this new law does suffer from one particular defect, i.e. the absence of any clear line (actually any line) between a posting and a simple business trip. There is no distinction in the Decree based on the length of time spent in France or on whether the purpose of the visit is a few meetings, a one-off project or something equivalent to a full-time job. It must be presumed that the law does not intend to treat them all the same but until some guidance or decided cases shed light on where that dividing line lies, care should be taken.