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  • Writer's pictureYadhira Stoyanovitch

Hiring A Non-European Union Employee in France

HIRING A NON-EUROPEAN UNION EMPLOYEE IN FRANCE

From freedom to work to restrictive measures…

The system of freedom to work – which is a fundamental principle in the European Union (EU) – promotes the mobility of European workers by guaranteeing them access to employment and social protection in the various Member States. European regulations and directives have introduced minimum protection thresholds for working conditions, working hours and part-time work. The posting of workers within the EU is governed by European Directive 96/71/EC of 16 December 1996, revised in 2018, which allows any EU company to temporarily send its employees to another Member State. These so-called “posted” workers benefit from the working conditions of the host country, but the social security charges remain those of the country of origin.

While nationals of the EU or the European Economic Area (EEA) do not need to obtain a work permit to be hired in France, and can work freely under the same conditions as a French national, this is not the case when an employer decides to hire a foreign employee who is not a national of a European Union country.

However, although employers must comply with several mandatory rules, French law offers foreign employees a minimum level of protection. Indeed, social protection in the workplace has become one of the cornerstones of social Europe[1].


A. OBLIGATIONS AND FORMALITIES FOR HIRING A FOREIGN WORKER IN FRANCE

1. Choosing between secondment and expatriation

Before a foreign employee arrives in France, the employer will need to consider the impact of carrying out an assignment in France on the contractual relationship between the employee and his foreign-based employer. Employers can choose between secondment and expatriation.

1.1 Secondment or temporary assignment


These are situations in which an employer based abroad entrusts his employees with a temporary assignment to be carried out in France.


Temporary assignment can take place as part of an international service provision agreement between a foreign company and a French company, intra-group mobility within a French company belonging to the same group as the company of origin, on the employer’s own behalf without a client company or host company in France, or as part of a secondment agreement between a foreign temporary employment agency and a French client company.


During the period of secondment, the employee’s employment contract remains in force with his original foreign employer, who will give him instructions and monitor the performance of his duties, and may even penalize him if he fails to comply with instructions.


However, even if the foreign employment relationship continues, employers (and principals) must comply with the so-called imperative French provisions that apply to all workers, such as the minimum wage, overtime pay, statutory working hours, legislation on health and safety at work, and so on.


1.2 Expatriation


The employee is sent to France on a permanent basis, resulting in the termination or suspension of his original contract. It will therefore be the French company that employs him. The employee will cease to be affiliated to the social security scheme in his country of origin and will be compulsorily affiliated to the French scheme.


2. General obligations before hiring a foreign employee in France

Before recruiting a foreign worker, the employer must check whether the applicant has the right to work in France. They must comply with the usual recruitment procedures.

If the employee has never been registered in France, the employer will have to apply for registration with the CPAM (or the MSA, in the case of an agricultural employee). The employee will be affiliated exclusively to the French social security scheme and will lose his or her affiliation to the scheme in his or her country of origin.

However, the work permit may be restricted to certain professions or geographical areas. If issued in mainland France, it confers rights in mainland France only[2].


2.1 General procedure for introducing a foreign employee in France


Unless the job in question is on the list of “short-staffed jobs”, the employer must publish a job advert on an official job search website for a period of 3 weeks (Pôle emploi[3]).


The employer must then submit the work permit application to the Ministry of the Interior’s online platform at least 1 month before taking up the candidate to be hired, together with:

  • The letter explaining the assignment or recruitment of the employee and detailing the duties involved.

  • An up-to-date K.BIS extract from the company.

  • Proof of the links between the company based in France and the company based abroad in the case of intra-group mobility.

  • A copy of the employee’s passport or national identity document.

  • If the employee is already resident in France, a copy of the residence permits authorizing residence in France.

  • The employee’s CV or other proof of qualifications and experience.

  • Where applicable, a copy of the diploma or qualification entitling the holder to work as an employee.

  • Where the activity is subject to specific regulatory conditions, proof that these conditions have been met.

  • Where the employment situation is enforceable, proof of the search carried out to recruit a candidate already on the labour market.

The decision on whether to authorize a foreign worker to work is taken by the authorities electronically[4].


If approved, the work permit is sent to the Office Français de l’Immigration et de l’Intégration (OFII).

Once the work permit has been issued, the employer can proceed with the usual recruitment formalities.


2.2 Contracts requiring a work permit

Whether it’s a fixed-term or open-ended contract, a temporary or seasonal employment contract, foreign nationals can only be hired if they have a work permit.

For “young professionals” aged between 18 and 25, coming to improve their linguistic, cultural and professional knowledge with a professional diploma in the field concerned and a sufficient command of the French language, from countries that have signed a bilateral agreement with France, the application must be sent to the OFII or to the French consulate for Canada.

However, in the case of contracts that promote employment, such as apprenticeship contracts, employment skills pathways or professionalization, authorization is not given to foreign nationals.

2.3 Certain employees are exempt from work permit requirements

Foreign employees who are nationals of non-EU countries and who are coming to France for a period of 3 months or less in order to work in one of the following fields are exempt from the work permit requirement:

– sporting, cultural, artistic and scientific events;

– conferences, seminars and trade fairs;

– cinematographic, audiovisual, entertainment and phonographic production and distribution;

– modelling services and artistic posing;

– personal services and domestic staff during their private employers’ stay in France;

– audit and expertise assignments in IT, management, finance, insurance, architecture and engineering, as part of a service provision contract or intra-group mobility;

– occasional teaching by visiting professors.

2.4 Tax payable by the employer to the tax authorities in respect of the employment of a foreign employee

When an employer hires a foreign employee and is granted authorization to work, he must pay a tax (article L436-10 of the Code de l’Entrée et du Séjour des Étrangers et du Droit d’Asile[5]), which is payable only once when the residence permit for the employee or seconded worker is first issued. The amount of the tax depends on the length of the employment contract, the amount of remuneration and the type of employment contract of the foreign worker or seconded employee.


– If the employment contract is for more than 3 months and less than 12 months, the amount of tax varies according to the gross monthly salary paid:

  • Gross monthly salary less than or equal to €1,747.20 (minimum wage in France): the tax is €74,

  • Gross monthly salary between €1,747.20 and €2,620.80: the tax is €210,

  • Gross monthly salary over €2,620.80: the tax is €300.


– If the employment contract is for 12 months or more, the amount of the tax varies according to the gross monthly salary paid:

  • Gross monthly salary of less than €4,368.00: the tax is 55% of the gross monthly salary,

  • Gross monthly salary of €4,368.00 or more: the tax is 2,40 €.

– If the employee is taken on under a seasonal employment contract, the amount of the tax is €50 per full or incomplete month of employment. The tax is due for each recruitment.

– If the employee was recruited under a bilateral agreement for the exchange of young professionals, the amount of tax is €72, regardless of the length of the employment contract or the amount of the salary.

– If the employee is hired on a temporary basis as a language assistant, there is no tax to pay, regardless of the length of the employment contract or the amount of the salary.

The tax must be declared and paid annually, in arrears, to the Direction Générale des Finances Publiques (DGFiP)[6]. The tax is due on new hires made each year.

The tax return and payment must be made at the same time as the VAT return for the following year.

In the event of cessation of activity, the employer is obliged to declare and pay the tax immediately, without waiting for the following year.

B. PROHIBITIONS AND PENALTIES


1. Prohibition on taking on an employee without a work permit


All employers are prohibited from taking on a foreign worker without a work permit. This is the offence of illegal employment (article L8251-1 of the French Labour Code).

The employer may be subject to administrative sanctions, recovery of social security contributions that should have been paid and criminal penalties.

Employers who hire foreign nationals without a residence permit are liable to 5 years’ imprisonment and a €15,000 fine (article L8256-2 of the French Labour Code).

2. Failure to register the employee with social security :

In addition to the Déclaration Préalable à l’Embauche (DPAE)[7], employers must apply for registration online via the French Health Insurance website (Caisse Primaire d’Assurance Maladie – CPAM).

Failure to comply with this formality may result in criminal penalties. That is:

  • Engaging in fraudulent activities or making false declarations in order to obtain or attempt to obtain a residence permit is punishable by a fine of €3,000 and up to one year’s imprisonment;

  • Intentionally employing or maintaining an undocumented foreign national in a company is punishable by a fine of €15,000 per foreign national concerned and up to 5 years’ imprisonment;

  • Employing or intentionally maintaining an undocumented foreign national in a company as part of an organized gang is punishable by a fine of €100,000 for each foreign national concerned, as well as 10 years’ imprisonment;

  • Deliberately calling upon, directly or indirectly, the services of an employer of a foreigner not authorized to work is punishable by a fine of €15,000 per foreigner concerned, as well as 5 years’ imprisonment.

It is also possible to impose additional penalties such as confiscation of assets, a ban on entering the country, a ban on carrying out an activity, additional contributions, etc.

Conclusion

In view of the severe penalties to which an employer who hires a foreign worker without a work permit is exposed, it is preferable to comply with the procedures for obtaining permits and to respect the obligations arising from them.

In order to help companies recruit in sectors where it is difficult to find workers, the forthcoming immigration law currently in preparation provides for the creation of a residence permit dedicated to jobs in short supply. The aim of this reform is to enable undocumented immigrants currently in France to obtain this visa, if they work in fields where the supply of jobs exceeds the demand for applicants.

While it is true that the regulations governing the recruitment of foreign employees are restrictive, the quid pro quo is employees protection, to guarantee their rights and well-being. As a result, foreign workers in France will benefit from the principle of equal treatment, under which foreign employees are treated in the same way as French employees as regards working conditions, social benefits and fundamental rights, as well as the principle of non-discrimination[8]. They will benefit from a written employment contract specifying the conditions of employment, their remuneration, working hours, vacations, etc. They will also be entitled to social benefits such as social security, social insurance, and will have the right to join trade unions and take part in trade union activities to defend their interests.

Finally, the French Labour Inspectorate[9] ensures that employees’ rights are respected, including those of foreign workers, by carrying out inspections and intervening in cases of non-compliance with labour regulations.

It is clear that the obligations with which companies employing foreigners in France must comply can only be an asset for employees, and an incentive for them to work in France.


About the Author :


Me Yadhira STOYANOVITCH is a Doctor of Laws. She holds a DEA in Special Private International Law (International Business and Contracts). She is a graduate of Higher Studies in European and Community Law (European Institute of Advanced International Studies).


After nearly 10 years of professional experience as a Researcher on the Legal Protection of Biotechnology (Ministry of Research and Higher Education) and a corporate lawyer (Head of the Legal and General Affairs Department of ADEME), she created her firm in 1992 and joined the Paris Bar.

She is specialized in Business Law and International Contracts, Construction and Real Estate Law, International Family Law, Environmental Law (treatment and disposal of industrial waste) and Energy (energy production, new and renewable energies, self-production and cogeneration).


She is in charge of training at ESTP (Special School of Public Works and Building) and INSTN (National Institute of Nuclear Sciences and Techniques). She is also an Agent in Real Estate Transactions.

She is bilingual French-Spanish and fluent in English and Italian.


Me Yadhira STOYANOVITCH is President of ALTER EGO MEDIATION, ARTHESIS FORMATION, and ITINERANTS SANS FRONTIERE. She is a member of the Office of the Club Business BTP IMMO of Nice.


[1] In September 2022, MEPs adopted the EU’s first legislation for an adequate minimum wage.

[2] Nota Bene: In France, Metropolitan France is the central territory, as opposed to its colonies and overseas territories. Metropolitan France is called “metropole” in relation to the French overseas territories. Overseas refers to a geographical area beyond an ocean or sea. The overseas territories are those that France owns outside Europe.

[3] Pôle emploi is a French’s public employment service. Its role is, on the one hand, to compensate jobseekers and help them return to work; and, on the other, to guide companies in their recruitment efforts.

[4] The French authorities can refuse a work permit if they consider that the level of unemployment is too high.

[5] French Code on the Entry and Stay of Foreigners and the Right of Asylum

[6] French Public Finance Department

[7] Pre-Employment Declaration

[8] Discrimination against foreign employees is illegal in France, and measures are in place to combat all forms of discrimination in the workplace.

[9] In France, the Labour Inspectorate ensures that employers comply with the provisions of the Labour Code and collective agreements, particularly as regards employment contracts, working hours, undeclared or illegal work, etc.

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