Hire in France

A CDD cannot be used to fill a position that relates to the company’s “normal and permanent” activity on a long-term basis. A CDD may be used only for the performance of a precise and temporary task. It is applicable specifically to cover work in the following situations:

1. Substitution of an employee who is absent (e.g. sick leave) or whose employment contract has been suspended or, in some circumstances, an employee who has left employment until a replacement employee starts work.
2. To replace the hours of a full-time employee who is temporarily working part time.
3. Temporary increase in company’s business.
4. Seasonal jobs or jobs for which a fixed-term contract is usually used.
5. Substitution of a company manager.
6. Recruitment under the applicable employment policy (professional training and apprenticeship contracts, seniors’ contract, etc.)
7. A defined-objective and fixed-term contract for engineers and executives.
8. To carry out jobs for which indefinite-term contracts are not customarily used because of the nature of the activity (e.g. certain jobs in hotels and catering, education and sport).

The fixed-term contract must be outlined in writing. Otherwise, it is deemed to be a permanent contract. Non-signature by the employee or the employer is considered as a lack of written agreement. The contract must be given to the employee within two days of being hired and must include certain details such as the reason for contract, contract end date, post held, length of trial period. The fixed-term contract must include a detailed description of the reasons for its use, otherwise it might be deemed a permanent contract. The employer is also liable in this case for a fine of €3,750.

During the contract, an employee under a fixed-term contract has the same rights as the other employees of the company in terms of working hours, salary, sickness cover, election of employee representatives, employment benefits, etc.

Duration of the fixed-term contract: The fixed-term contract can be signed with a few different options for duration:

1. Date to date: In this case, the contract has a maximum duration of 18 months. This includes renewal. It can only be renewed twice.
2. With no precise term: In this case, the term of the contract will be linked to the achievement of the object of the contract. This type of fixed-term contract is required to specify a minimum duration.
3. The fixed-term contract will automatically expire at the end of the term expressed in the contract. Upon the completion of the contract, the employee receives:
   • An indemnity amounting to 10% of the total gross remuneration paid during the contract, provided no indefinite-term contract of employment is agreed to at the end of it.
   • A compensatory allowance of paid leave, irrespective of the length of the contract.
   • If the working relationship continues following the set term, it becomes a permanent contract.
4. The fixed-term contract cannot be terminated before its term except in the event of an agreement between the parties, serious misconduct or force majeure. It can also be terminated if the employee can provide proof that he or she was hired under a permanent contract.
5. Aside from these cases, early termination of the contract results in the following:
   • The employer is required to pay damages to the employee, which shall be at least equal to the amounts of remuneration that the employee would have received until the end of the contract.
   • The employee may be required to pay damages to the employer for losses experienced by the company.
6. Successive fixed-term contracts: Within a maximum duration of 18 months, a fixed-term contract can only be extended twice. A fixed-term contract must not be used to fill a post related to the company’s normal, ongoing business. A succession of fixed-term contracts can only be entered into for the same job if there is a gap between the contracts, as indicated below (except in exceptional cases):
   • A third of the elapsed contract term for contracts with a duration of longer than 14 days
   • Half of the elapsed contract term for contracts that have a duration of less than 14 days

Special arrangements may be stipulated by an extended CBA.

In principle, any hours performed by full-time employees beyond 35 hours in a week are regarded as overtime. Performing such work will generally entitle the employee to a pay supplement. If the pay supplement is stipulated by a CBA (at a company or at industry level), it must be at least 10% on top of the employee’s normal rate. In the absence of a CBA, the Labor Code sets the supplement at 25% for the first eight hours of overtime in a week. It is set at 50% for any subsequent hours. Employees may be compensated for overtime with time off rather than a pay supplement, if a CBA (at the company or industry level) provides for it,  The time off must be equivalent to the overtime hours, plus the pay supplement that would otherwise have applied (e.g. if the employee would normally receive a 25% pay supplement for an hour’s overtime, they must be granted 1 hour and 15 minutes of time off).

Portage Salarial business setup must consider the following aspects related to worker’s remuneration:

• Base salary including a mandatory “5% finders fee”: this amount must be included in the total base salary and is clearly stated in the payslip.
• An additional “10% financial reserve” must be added on top of the remuneration and collected into the worker’s activity account (not available during employment, but is due and must be paid out to the worker at the end of employment/work activity).
• Possible variable remuneration
• Allowances, if required

13th-month payment is not a common practice and depends on the company’s internal setup.

It is common practice in France to reward employees through bonuses. Bonus payments can be distinguished between:

1. Discretionary bonuses: Bonuses are discretionary when the employer is completely free to choose whether or not to award them. If so, they are not considered an integral part of the remuneration package. However, the French Supreme Court ruled that:

• discretionary bonuses must be justified on objective and appropriate grounds.
• the employee must be informed of these grounds before entering into the employment contract.

It is therefore debatable whether discretionary bonuses can still be granted.

2. Contractual bonuses. If a bonus is provided for in the employment contract, it is a contractual element of the remuneration package and can only be modified with the employee’s consent. The French Supreme Court ruled that if the bonus is contractual:

• Its variation must be based on objective criteria, which are independent from the employer’s wishes.
• The employee must not have to share the employer’s risk.
• The employee’s salary must not be less than either of the following: the statutory minimum wage or the minimum salary set by a relevant Collective Bargaining Agreement (CBA).

Some CBAs require bonuses, which are subject to the same rules as contractual bonuses.

Bonuses can also be paid as a result of company practice. If this practice is regular, fixed and applies to a set group of employees, the bonus forms part of the remuneration package the employer must pay. An employer can end such a bonus by following a procedure which involves:

• Individually informing the employees
• Informing the staff representatives
• Observing a reasonable notice period (usually, at least three months)

The Labor Code provides for a minimum notice period when the employer terminates the indefinite-term employment contract of an employee with at least six months’ service. This applies after the end of any probationary period. The minimum notice period starts at one month. This increases to two months after two years’ service. During the first six months of service, the notice period is set by an applicable CBA, employment contracts or the regular practice in the company or occupation concerned.

If the employment relationship is terminated at the request of the employee, the notice period depends on the employee’s seniority in the company and professional status. Details are determined by sectoral CBAs but the notice period is generally between one and three months. Shortened periods may be negotiated between the parties and some CBAs release employees from any notice period if they have found new employment.

The employer may decide to dispense with all or part of the notice period and pay the employee in lieu of the unworked period. By request of the employee, the employer may agree to dispense all or part of the notice period. In this case, the contract ends on a date agreed by the parties and the employer does not need to make a payment in lieu.

In general, wages may be paid in cash, by crossed cheque, or by transfer into a bank or postal account.

In general, remuneration must be paid monthly, and the monthly amount must be independent of the number of days in the particular month (for example, the amount must not differ on the grounds that a month has 30 or 31 days).

Each time an employer pays wages to an employee, it must provide a payslip (‘bulletin de paie’). If the employee does not object, the norm is that the employer provides the payslip in electronic format, but it must provide a paper payslip at the employee’s request. The employer must keep copies of employees’ payslips, in electronic or paper format, for at least five years.

The payslip must have the following information:

• The employer’s name and address
• The name of the establishment where the employee works
• The employer’s field of work (referring to an official list of activities)
• Where the employer is registered in the official national business directory, its registration number
• Where the employer is covered by an industry-level collective bargaining agreement (CBA), the name of this agreement — if the employer is not covered by such an agreement, the payslip must refer to the articles of the Labour Code that apply to the employee’s notice period and annual leave.
• The employee’s name
• The employee’s job title and position (according to the applicable job classification scheme)
• The pay period and the total hours worked related to the payment of wages (distinguishing between hours paid at the normal rate and those paid at a higher rate. This higher rate must be specified. Special rules apply to the details to be provided on this point if the employee is engaged under “all-in” working time agreement.)
• The details of any ancillary payments on which social security contributions are payable
• The gross remuneration for the pay period
• The amount of income tax deducted
• The amount of social security and related contributions (those paid by the employee and the employer – before deduction of any exemptions or rebates – as well as the rates of the various contributions)
• Details on any other deductions or additions
• The net amount of remuneration the employee received
• The payment date
• Details of any annual leave used and the annual leave pay received in the pay period
• Details of any social security contributions paid by scheme (health, retirement, family benefits, unemployment, and occupational accidents and diseases)
• The total amount of any social security contribution exemptions or rebates
• The total amount paid the employer has paid (the gross remuneration, plus the employer’s social security contributions minus exemptions or rebates)
• A reference to the payslip information on the official authority website: www.service-public.fr
• Advice to the employee to keep the payslip on record

The Labour Code provides that employees are entitled to at least 2.08 working days of paid annual leave for every one month of employment with the same employer, which results in an annual entitlement of 25 working days. Employees with a child under the age of 15 (or a disabled child of any age) are entitled to two days’ extra leave per child in certain cases.

The following matters must be determined by a collective bargaining agreement (at company or establishment level or, failing this, at industry level) or, in the absence of such an agreement, by the employer, following consultation of the social and economic committee.

• The dates of the “annual leave period”, during which employees are recommended to take a certain amount of their leave; this period is from May 1st – October 31st.
• The schedule for employees to take their leave during the annual leave period, which must take into account issues such as employees’ family situation and length of service.

Employees can ask to take their leave at particular times, but the employer is not required to comply with such requests. Employees must be informed of their leave dates at least one month in advance.

Each year, employees must take one period of annual leave of at least two consecutive weeks during a certain period. A collective bargaining agreement (at company or establishment level or, failing this, at industry level) may determine this period, and also lay down rules on when employees may take the remainder of their annual leave.

An employee cannot generally take more than four consecutive weeks of leave. However, the employer can permit a longer period of leave in certain cases.

During annual leave, employees must receive holiday pay. This is calculated by whichever of the following two methods is more favourable to the employee:

• 10% of the employees’ gross remuneration over the period from June 1st in the previous year to May 31st in the present year (i.e. in respect of the full five weeks of annual leave, employees receive one-tenth of their annual pay); or
• the remuneration that the employee would have earned if they had worked during the annual leave.

On May 1, all employees must be given the day off work (without loss of pay) except in sectors where this is not possible. This includes hospitality, hospitals and public transport. Employees who work on May 1 are entitled to receive double pay. In addition to May 1, there are generally 10 other official national public holidays per year.

Adult employees do not have a statutory entitlement to a day off on these holidays. However, on the basis of a collective agreement or company practice, most employers give employees a day off on all or most public holidays. Employees below the age of 18 must be granted a day off on all public holidays (though collective agreements may specify exceptions in some industries, including catering, hotels and some areas of retail).

There are special rules regarding public holidays apart from May 1. If employees are granted a day off, this must be without loss of pay. This applies if the employee has at least three months’ service (a collective agreement may provide for more advantageous conditions for employees); and

• if employees work, they are not entitled to an enhanced pay rate or time off in lieu. However, an applicable collective agreement may address these matters.
• If a public holiday falls on a day not normally worked (such as a Sunday), the employer is not required to observe the holiday at a later time. This means the holiday does not need to be observed on the next Monday.

Based on a collective agreement or company practice, it is common for employers to grant “bridge” days between a public holiday and the weekend. This gives employees a longer period of consecutive time off. An applicable collective agreement will determine whether or not employees will be compensated for these days or if they will have to make up the time off later. In absence of such an agreement, the matter is left to the employer’s discretion.

Employees are required to work without pay for one day of seven hours each year. Their wages for this “solidarity day” are used to fund measures to help vulnerable groups. The details for how this scheme is implemented should be outlined in a collective agreement. In the absence of such an agreement, the employer will determine the details. This is settled following consultation of the social and economic committee. Typically, this may involve employees working unpaid on a Saturday or public holiday (other than May 1).

An employee who cannot work due to an illness or injury must notify the employer as soon as possible. The employee must then obtain a “work stoppage” medical certificate from a doctor and send this to the employer, usually within two days of the start of the sickness absence. The employee must also send the certificate to the relevant sickness insurance fund (CPAM) within two days.

After the first three days of a period of sickness absence, employees are entitled to receive daily sickness benefits (‘indemnités journalières’ – IJ) from their CPAM if they meet eligibility requirements. This is determined by employment or contribution history. Benefits are generally set at 50% of the employee’s basic pay, up to a cap. Generally, eligible employees will be entitled to receive no more than 360 days of benefits in any three-year period.

If an employee has at least one month’s service and is receiving sickness benefits from the CPAM, the employer must pay additional benefits following the first seven days of a period of sickness absence. An applicable collective agreement may provide for a shorter “waiting period.” These additional benefits top the CPAM benefits up to 90% of the employee’s gross remuneration for a period of 30 to 90 days. This period will depend on the employee’s length of service. After this period, the additional benefits top the CPAM benefits up to two-thirds of gross remuneration. This again applies for a period of 30 to 90 days, depending on the employee’s length of service.

The employee’s employment contract is suspended during sickness absence. Special rules apply to occupational accidents and diseases

Maternity leave

Employees who are pregnant are required to take eight weeks of maternity leave (‘congé de maternité’), including at least six weeks after the child’s birth. Furthermore, employees are entitled to take:

• 16 weeks of maternity leave for a first or second child — six weeks before the birth and 10 weeks after
• 26 weeks of maternity leave for a third or subsequent child — eight weeks before the birth and 18 weeks after
• 34 weeks of maternity leave in respect of giving birth to twins — 12 weeks before the birth and 22 weeks after
• 46 weeks of maternity leave in respect of giving birth to triplets (or more) — 24 weeks before the birth and 22 weeks after.

With consent of their physician, an employee is entitled to reduce the antenatal part of their leave to as little as three weeks. Instead, they can add this untaken leave to the postnatal part of their leave. If an employee has an illness related to pregnancy or childbirth, her maternity leave may be increased by up to two weeks before the birth and four weeks after. In the case of a premature, the untaken portion of antenatal leave is usually added to the postnatal portion of the leave. If the birth is later than the due date, the postnatal portion of the maternity leave will not be reduced. If the child is stillborn or dies late in the pregnancy, the mother is still entitled to maternity leave. If the mother dies during maternity leave, the child’s father may take the remaining leave.

The employee must let the employer know in advance of her planned maternity leave, specifying the start and end dates. During maternity leave, the employee’s employment contract is suspended, and the employer has no legal obligation to pay her. The employee is usually entitled (bearing she meets eligibility criteria) to earnings-related social security maternity benefits. Employers may supplement employees’ benefits during maternity leave, based on a collective agreement, the employment contract or company policy.

Following maternity leave, employees return to their previous role (or a similar one) with at least equivalent remuneration. They must have a return-to-work interview organized by the employer within 8 days of their return to discuss matters such as any health-related adjustments that may be necessary to their job and are entitled to a meeting to discuss their career development.

Protection for women who are pregnant or have recently given birth

From the point where an employee is medically certified to be pregnant, the employer must not generally dismiss her. This protection persists throughout the period during which the employee is eligible to take maternity leave. This applies whether or not she uses her full entitlement. This protection applies to any period of paid annual leave immediately after maternity leave and for 10 weeks after the end of the maternity leave (or, where applicable, annual leave). The employer will only be able to terminate the contract during this protected period only if the employee commits a serious misconduct unconnected to her pregnancy or if it is impossible to employer her reasons unrelated to the pregnancy or birth. Even in these cases, the employer cannot terminate the employee’s contract, or give notice of termination, during her maternity leave.

Employees who are pregnant, have recently given birth or are breastfeeding must not perform certain types of work that present particular risks for their health or safety. The employer must offer them alternative work without loss of pay. If this is not possible, the employer must place them on leave. Furthermore, a pregnant employee can be temporarily transferred to another job without loss of compensation. This can happen either at her request or on the employer’s initiative. This applies if there is a medical certification confirming that her state of health requires such a move.

Eligible employees have a right to paid time off for antenatal and postnatal medical appointments.

Adoption leave

Employees have a right to adoption leave (‘congé d‘adoption’) in the event they adopt a child. If one adoptive parent takes adoption leave, they will be entitled to 10 weeks’ leave if they already have one child or fewer. This will be 18 weeks’ leave if they already have two or more children. If both adoptive parents take leave, they are entitled to share between them the same amount of leave as one parent would be entitled to, plus 11 days. Following the simultaneous adoption of two or more children, if one adoptive parent takes leave, they are entitled to 22 weeks’ leave This applies irrespective of how many children they already have. If both adoptive parents take leave, they will have the right to share the 22 weeks. They also get an additional 18 days. Adoption leave starts on the day the child arrives in the family home or up to one week earlier.

Adoption leave is governed by largely the same rules as maternity leave in areas such as notification of the employer, suspension of the employment contract, dismissal protection, pay, benefits and return to work (except for interviews and meetings). Eligible employees are entitled to the same social security benefit, which may be shared if both parents share the leave.

Paternity and Childcare leave

Employed fathers have a right to paternity leave (‘congé de paternité et d‘accueil de l‘enfant’) on the occasion of their child’s birth. The right also applies to an employee (of either sex), other than the father who is the spouse, civil partner or cohabitee of the child’s mother.

The duration of paternity and childcare leave is 25 calendar days (32 days in the case of multiple births) and can be taken on all days of the calendar year including public holidays. The leave comprises 2 distinct periods as follows:

• One mandatory period of 4 calendar days taken immediately after the 3-day birth leave
• A second period of 21 calendar days (28 days in case of multiple births)

Note: a mandatory period of paternity and childcare leave of 4 calendar days must be taken immediately following the 3-day birth leave. If the child is hospitalized immediately after birth, specific leave may be granted.

Paternity leave is governed by largely the same rules as maternity leave in areas such as suspension of the employment contract, dismissal protection, pay, benefits and return to work (except for interviews and meetings). Employees cannot be dismissed during paternity leave, except for serious misconduct or where it is impossible to continue with the employment contract for reasons not linked to the paternity leave.

Parental leave

Biological and adoptive parents are entitled to take parental leave (‘congé parental d’ éducation’) if they have at least one year’s continuous service. The leave may start after the end of the mother’s maternity leave or the adoptive parent’s adoption leave. One of the parents may take the full allocation of parental leave or the two parents can share it.

In the case of the birth of one child or twins, the initial period of parental leave is one year, which may then be renewed twice. The leave, including the renewal periods, must be completed by the child’s third birthday or by the date the children enter nursery school. In the case of the birth of triplets (or more), the initial one-year period of leave may be renewed up to five times and the leave must end by the children’s sixth birthday. The rules on the duration and renewal of parental leave in the case of adoption are contingent on the number of children and their ages. In all cases, parental leave may be extended by up to one year if the child has a serious health problem or disability.

An employee who wishes to take parental leave must offer the employer notice of the planned start date and duration of the leave. This leave period will be for one or two months depending on the circumstances. If an employee wants to renew their parental leave (or switch to part-time work), they must give at least one month’s notice. Employees can generally return from leave before the planned date only with the employer’s agreement.

During parental leave, the employee’s employment contract is suspended. The employer is not required to pay them. The employee may be entitled to receive income-related social security benefits (dependent on family situation) for all or part of the leave. Parents who share leave can receive additional benefits.

While on parental leave and on their return to work, employees have certain entitlements to receive training from the employer. This is intended to keep them up to date with developments at work. Following the leave period, employees return to their previous role (or a similar one) with at least equivalent remuneration. They are entitled to a meeting with the employer to discuss their career development.

Instead of taking full-time parental leave, as outlined above, relevant employees may opt to work part time. This is known as part-time parental leave. The same rules and conditions apply as for parental leave in terms of eligibility, sharing of leave, duration and renewal of the period of part-time work (the same as for leave), notification of the employer and return to full-time work after leave. The employee and employer will agree on the total part-time hours to be performed (which must be at least 16 a week). The employee is paid as normal for hours worked and may be entitled to social security benefits for the remaining time.

Purpose: None specified

Amount of Leave: This leave is granted from six to 11 months, unless a collective agreement provides otherwise.

Conditions;

• The leave is not paid.
• 36 months’ service (a collective agreement may modify this requirement) and six years’ work experience are required.
• The employer may refuse the sabbatical leave or postpone it in some circumstances. After taking the leave, an employee is not eligible to do so again for at least six years.