In brief : posting of employees

- Are you a company not established in France and wishing to send one or more of your employees to provide a service in France ?
- Are you an employee of a company not established in France who is about to carry out a mission in France on behalf of your employer ?

If you are, the French regime on posting of employees concerns you.

Companies established outside France may temporarily post their employees in France. When doing so, they must comply with a number of compulsory conditions and formalities, and apply the provisions of French labour law in a number of areas to the employees they post.

The rules presented in this summary only concern the definitions, conditions and formalities of posting provided for by labour law. Other rules and formalities exist, including in legislation applicable to posted workers’ social security. For further information, log onto the CLEISS website.

The posting regime : conditions and formalities to comply with

The Labour Code provides guarantees and rights for the employer and posted employee(s) alike, provided that the prerequisite conditions and formalities are complied with.

Conditions to fulfil (…)

Conditions to be fulfilled by the employer
1. To be regularly established in the State of origin and carry out substantial activities there other than those arising only from internal and/or administrative management.
2. To comply with one of the regime’s four permissible cases for posting employees :
- Execution of a service provision contract ;
- Intra-company or intra-group mobility (transnational loaning of staff on a not-for-profit basis) ;
- Execution of an employee placement contract between a foreign temporary employment company and a user company in France ;
- The carrying out of an operation on one’s own behalf (no contractual link with a French company).

Conditions to be fulfilled by the employee (if conditions concerning the employer have been complied with)

- To be employed by a regularly established employer exercising its activity outside France ;
- To work habitually for such employer, carrying out his/her work at its request on French territory under the conditions defined in Articles L.1262-1 and L.1262-2 of the Labour Code ;
- To carry out his/her work in France on a temporary basis ;
- To not have been recruited for the sole purpose of being sent to France.

Before the posting : compulsory preliminary formalities

1- Prior declaration of posting to the Labour Inspectorate
Prior to the start of its intervention in France, the company must send a declaration of posting to the Labour Inspectorate responsible for the area in which the service is to be carried out. Such communication is obligatorily uploaded on the SIPSI website.

2- Designation of a representative present on French soil
The company must designate a representative present on French soil for the duration of the posting, in a document written in the French language and containing the following information :
- surname, business name if appropriate, first name, date and place of birth ;
- email and postal addresses in France and telephone number ;
- indication of the interested party’s acceptance of his/her designation ;
- the effective date and duration of the designation, which may not exceed the period of posting ;
- indication of the place of conservation on national soil or of means of access to the documents that must be kept available to labour inspection controllers.

Throughout the posting period, the representative of the company posting employees in France is responsible for liaising with labour inspection controllers and keeping various documents at their disposal, which he/she may communicate to them in paper form or electronically.

For construction activities in the BPW sector, a professional identification card is required for all posted employees and temporary employees carrying out work.
For further information and to request cards for your employees : http://www.cartebtp.fr

During posting : rights guaranteed to the employee

If you are an employer and have complied with the conditions for posting stated above, you will, in application of the regime concerned, be submitted to the provisions of the French Labour Code and of collective agreements applicable to employees of companies in the same activity sector and established in France, as regards the following :
- Individual and collective freedoms ;
- Discrimination and professional gender equality ;
- Protection of maternity ;
- Exercise of the right to strike ;
- Hours of work, public holidays, annual paid leaves, family-related leaves ;
- Minimum wage, including increased rates of pay for overtime ;
- Health and safety in the workplace, minimum employment age, prohibition of child labour ;
- Conditions for contributing to leave and bad-weather funds ;
- Illegal work (the Labour Code’s provisions against illegal work will apply to you as they do to companies established in France)

If you are a foreign temporary employment company, you will be submitted to further obligations (hiring-out conditions and financial guarantee)

Minimum wage

At the very least, a posted employee must receive the minimum wage provided for by the Labour Code in return for his/her temporary activity in France. Consequently, the basic wage is to be calculated on the basis of the gross “SMIC” (€9.76 at 1 January 2017).

If your activity sector is covered by an extended national or local collective agreement, you must apply its provisions to the employees you post.

In order to prove its compliance with the legal or agreed minimum wage, the employer must produce :
- a payslip for a posting equal to or exceeding one month ;
- an equivalent document testifying to payment for a posting of less than one month.

Sums paid out to cover costs incurred by the posting, such as travel, accommodation and food expenses, are not to be included when calculating the minimum wage and may not be chargeable to the posted employee.

Hours of work

In France, statutory working time is set at 35 hours a week, from 0:00 Monday to 24:00 Sunday.

Unless special collectively agreed provisions state otherwise, further hours worked entitle the employee to a wage increase of :
- 25% for work carried out between the 36th and 43rd hour of work ;
- 50% for work carried out from the 44th hour and beyond.

The posted employee must be allowed a daily rest period of 11 consecutive days and weekly rest periods of 35 hours including Sundays.

Unless a special exception is made, maximum working time is 48 hours a week from 0:00 Monday to 24:00 Sunday, and 10 hours a day.

For work carried out in France, the posted worker is entitled to leave of 2.5 workdays per month of actual work completed with the same employer. For periods of activity less than one month, leave entitlement is prorated.

Health and safety in the workplace

Pursuant to the Labour Code, you, as an employer providing a service in France, are responsible for protecting the health and safety of your employees posted for the mission concerned.

This being so, you must implement preventive measures adapted to risks that employees may be exposed to.
Examples : work at a height, construction-site coordination, exposure to asbestos, exposure to noise, rules for use and checking of such materials as scaffolding and lifting equipment, etc.

In the event of an occupational accident, a declaration must be sent to the Labour Inspectorate within 48 hours.