I. Pre-employment declaration (DPAE = Déclaration Préalable à l’embauche)
Definition
By proceeding to this declaration, the employer will:
- Submit the declaration of a first hiring in an establishment and submit the employee’s declaration of employment to the relevant health service;
- Apply for registration of an employee in the general social security scheme, for membership in the unemployment insurance scheme and for membership in an occupational health service.
Deadline
The DPAE must be sent, at the earliest 8 days before the foreseeable date of hiring and at the latest when the employee takes up his duties.
In case of non-compliance
The employer incurs an administrative fine and penal sanctions for illegal employment. It will also lead to an URSSAF recovery of the sums owed.
II. Non-EU candidate
Principle
Employer’s obligation
The employer will have to verify the document’s validity. To do this, he has the obligation to submit[2] the non-EU candidate’s working permits, at least 2 working days before the effective date of hiring, to the Prefect of the local constituency[3]. In the absence of a response, the employer’s obligation to verify is deemed to be fulfilled.
If the non-EU candidate provides a “proof of registration on the list of employment seekers issued by Pôle Emploi”, the employer is exempted from the above-mentioned procedure.
In case of non-compliance
Hiring a foreigner without a working permit is a criminal offense. It may lead to criminal sanctions and complementary administrative and financial sanctions.
III. Two main types of contract
What are the differences?
Termination
With an unfixed term contract, the employment contract does not, by definition, have a planned end date: it continues as long as it is not terminated by the employer. The employer who wants to terminate an unfixed employment contract will have to engage a dismissal procedure (unless the termination occurs during the trial period).
With a fixed term contract, the employment contract ends automatically (without a dismissal procedure) on the end date provided for in the employment contract or on the occurrence of the event provided for in the contract as leading to the end of the contract (for example, in case of replacement). In principle, neither the employer nor the employee can terminate a fixed term-term contract before the end of the contract, except in certain cases exhaustively listed by law (for example, in the event of serious misconduct or “force majeur”).
Formalism
The unfixed term contract does not require to be in written form, but it is advised to do one.
The fixed term contract must be written, otherwise it will be requalified in an unfixed term contract.
The minimum content:
- For both contracts :
- The identification of the parties;
- The job title or the description of their duties;
- The working hours (if it’s part time, it must be expressly specified, with notably the distribution of the working time between the days of the week or the weeks of the month);
- The employee’s remuneration;
- The place of working;
- The employment start date;
- The length of the trial period;
- The holiday entitlement;
- The applicable branch collective bargaining agreement (CBA).
- In addition, for the unfixed term contract :
- The reason why the fixed term contract is used;
- The date end or it’s minimum duration if an exact termination date has not been fixed;
- The name of the replaced employee if the reason of the fixed term contract is a replacement;
- The employee’s working hours;
- The conditions for changing working hours;
- The amount of over-time permitted according to the branch CBA.
IV. The main rules applicable to a French employment contract
Key information in the branch CBA:
- Classifications: The applicable branch CBA will define the professional classifications that will impact the whole contractual relation.
- Salaries: The applicable branch CBA will determine a minimum salary for each professional classification.
- Trial period: The trial period’s aim is to assess the skills of the employee. If he does not fulfill the employer’s expectations, the said employer can end the trial period[4]. The length of the notice period will vary according to the classification of the employee.
Duration of the legal trial periods:
- For unfixed term contracts:
The legal trial period’s length is of:
- 2 months for a laborers or employees (“ouvriers ou employés”);
- 3 months for supervisor (“agent de maîtrise”);
- 4 months for executives (“cadres”).
The CBA may provide for different durations, but these durations will only be applicable if the provisions of the collective agreement were adopted after the law of June 25, 2008 (which provides for the aforementioned durations) or if they provide for longer periods than the law.
It can be renewed once if (i) it is permitted in the branch CBA, if (ii) it has been clearly indicated in the contract and if (iii) the employee had accepted it by writing.
- For fixed term contracts:
For fixed-term contracts, the trial period will vary according to the duration of the contract:
- Under 6 months: 1 day per week without possibly being more than 2 weeks;
- Over 6 months: 1 month;
- Undetermined end: use the minimum duration of the contract.
V. Working times
Part-time and full-time contracts :
A part-time contract is a contract which provides less than 35 hours per week whereas a full-time contract is a contract providing at least 35 hours per week.
The 35-hour threshold triggers the overtime count.
Maximum working hours and minimum rest period
Those rules are applicable to any contrat.
The maximum working hours are:
- 44 hours on an average on 12 weeks;
- 48 hours per week;
- 10 hours per day.
The minimum rest periods of rest are:
- 10 consecutive hours per day;
- 1 full day per week.
“Forfait-jours”
Definition
The main rules of establishment
The establishment of a “forfait-jours” requires the conclusion of a CBA within the company or the branch.
Even if a collective agreement is signed, not all employees can sign a “forfait jours” agreement, they must match with one of the two following situations:
- Executives who have autonomy in the organization of their schedule and whose functions do not lead them to follow a collective schedule;
- Employees whose working hours cannot be predetermined and who have real autonomy in the organization of their schedule for the exercise of the responsibilities entrusted to them.
VI. Top executive’s (“cadre dirigeant”) status
Executives are those who are entrusted with important responsibilities which implies great independence (1) in the organization of their schedule, empowered to make decisions in a largely autonomous manner (2) and receiving remuneration at the highest levels of remuneration systems (3) practiced in the company or establishment. These criteria are cumulative.
If these criteria are fulfilled, the top executive will be excluded from the provisions on working hours, daily and weekly rest, public holidays and the solidarity day.
The company is therefore not required to count their working time.
[1] Define belong the employment localization.
[2] The request must be dated, signed with acknowledgment of receipt or by e-mail including the transmission of a copy of the document produced by the foreigner.
[3] Or in Paris, the Prefect of Police
[4] A notice period must be respected