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The agreement should
be in writing – if there is no written agreement it does not mean
that the employee has no contract, and that the employer is not
subject to any constraints. Instead the Courts will generally hold
that a contract of employment nevertheless exists to which common
law and statutory provisions (mainly in favour of the employee)
are applicable
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The contract of employment should be in French - there is no reason why it should not be accompanied by an English (or any other EU language) translation but the French version will tend to relied upon in most circumstances by the Courts and French authorities. The French text will usually tend to prevail if there were a conflict between language versions.
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The contract should make clear whether the employee is a ‘cadre’ or not – the status of ‘cadre’ or executive is very important under French Employment Law and such status should not be granted lightly to an employee. There are a number of supplementary obligations and costs which are incumbent on the employer if he or she takes on a ‘cadre’.
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The job title should be carefully considered – it is becoming more common to see job titles in English, at least on business cards, but the job title which appears on the pay slip should be in French and relate to a clearly defined status or function either under statute or a collective bargaining agreement. The French version will tend to be the sole job title referred to, and relied upon, by the Courts and by the French authorities. Circumspection should be exercised in the regard to the ramifications in terms of trial period, notice period, pension rights, holiday entitlement etc which flow from a particular job title expression in French.
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The functions to be undertaken should be clearly defined - if possible by reference to the applicable collective bargaining agreement as well as to any appropriate objective yardstick. For sales people, targets, or the means of calculating such targets, should be bilaterally agreed and figure either in the contract of employment or an annex which is signed by the employer and the employee prior to the period during which the objectives are to be attained.
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The place of work and the hours of work should be defined – the standard (and not the maximum) French working week is now 35 hours in most circumstances. Overtime would be payable and/or time off in lieu (RTT) for hours worked over the standard week. The maximum number of hours which may be worked in a particular week is 48 hours and this may not normally be waived by any form of agreement between the employer and the employee
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The applicable Collective Bargaining Agreement (Convention Collective) should be carefully identified – the provisions of a particular agreement may well be applicable to your business whether or not you are a signatory to the Convention Collective. The applicable collective agreement and the function of the employee thereunder, as well as his or her echelon, coefficient etc should all be set out in the contract of employment.
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The trial period and notice period should be clearly set out - as a rule of thumb, the trial period would usually mirror the notice period. Also as a very general rule, a cadre would have a three month trial/notice period and an ordinary employee would have one month. However, these periods may sometimes be varied under the collective agreement applicable to the undertaking. It would be most unusual to renew a trial period and once the employee has reached the end thereof, he or she is held to have an open term contract.
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Non-compete and non-disclosure/confidentiality clauses should be treated with great care – for example, it is becoming the norm to be required to pay a certain proportion of the employee’s former salary during the whole of the course of the non-compete period. Furthermore a number of the Collective Bargaining Agreements require the employer to indicate whether or not the non-compete clause is waived within a very short period of time (such as 8 days from the end of a person’s employment) failing which the compensatory amount must be paid.
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The above are simply some of the principal areas where employers from outside France have been observed to encounter sometimes serious difficulties with the French system, but it is mentioned that these examples are given simply as an initial indication of some of the areas where particular care is necessary and should neither be relied upon nor held to be exhaustive. Specific advice should always be sought from a duly trained and qualified French Employment Law practitioner.
