Obligations of the employer of posted employees

Prior declaration of posting of employees in France

An employer posting employees must provide the labour inspectorate of the place where the service is provided with a prior declaration of posting before deployment begins in France using the SIPSI internet portal. If the service is performed in several locations, it is sent to the labour inspectorate of the first place in which that service is provided.

If the posting is cancelled or the original dates of the posting are changed, the employer is required to revoke or amend its prior declaration using the SIPSI teleservice.

Furthermore, if the duration of the posting is greater than 12 months, an employer who wishes to derogate from the application of the status of long-term posted worker (see ‘Posted workers: your rights’) for a maximum duration of 6 additional months has to supplement the prior declaration of posting of the employees concerned, using the ‘SIPSI’ teleservice, and state the duration of the derogation requested and the grounds (for example, site delay due to bad weather, non-delivery of necessary equipment, etc.). These steps must be taken before the posting reaches the 12-month mark. Failure to do so will mean that, with effect from the 13th month, all labour and employment conditions laid down in statutes and agreements (generally applicable collective agreements) applicable to workers employed by undertakings established in France will apply, with the exception of those on the conclusion and termination of the employment contract and on supplementary occupational pension schemes (Article L. 1262-4 II of the Labour Code). In the event of replacing a posted employee by another posted employee in the same job, the duration of 12 months is reached when the cumulative period of the posting of the successive employees in the same job (same task at the same place) is 12 months.

What to declare ? 

The posting declaration completed on the SIPSI portal enables companies to appoint their representative.

The declaration of posting must contain :

Administrative penalties

If the prior declaration of posting is not sent via the SIPSI platform, the employer may receive a fine of up to €4,000 per posted worker (€ 8,000 in case of reoccurrence within a period of two years) with a total limit of € 500,000 (Article L. 1264-3 of the Labour Code).

Appointment of a representative on French soil

The company must appoint a representative present on French soil for the duration of the service who will perform the employers’ obligations on his/her behalf.

The declaration made on the SIPSI internet portal shall constitute the designation of the representative. That designation contains the following information, translated into French :

• Name or business name as well as, in the case of a specially designated agent, its SIRET number ;
• Their contact details (email address and telephone number) ;
• Indication of the place where the documents that must be kept at the disposal of inspectors are held or the rules governing access to those documents.

Prior to this, the company posting employees will need to obtain the representative’s agreement to being appointed to fulfil these duties.

The company representative : role and responsibilities

For the entire duration of posting, the company representative posting employees in France acts as a liaison with the Labour Inspectorate’s inspectors (but also with the judicial police, tax and customs authorities and social security bodies) and is in charge of ensuring that certain documents are made available to inspectors either in paper or electronic format.

There are no specific conditions as regards the representative’s capacity: The representative can be any person capable of carrying out this task (presenting documents and communicating with inspection officers). As such, the representative can be the client or even one of the posted employees (the person chosen must be easily reachable by email or telephone).

The representative’s liability cannot be incurred in the employer’s place for the obligations falling on him/her However, the representative is responsible for any offences that he/she may personally commit, such as the offence of preventing a labour inspection officer from fulfilling their duties (Article L. 8114-1 of the Labour Code for example).

Administrative penalties 

If a company representative is not appointed, the employer may receive a maximum fine of up to € 4,000 per posted employee (€ 8,000 in case of reoccurrence within a period of two years) with a total limit of € 500,000 (Article L. 1264-3 of the Labour Code).

Mandatory professional identification card in the construction and public works sector

All employers whose employees perform, manage or oversee - even on an occasional, secondary or complementary basis - construction and public works are required to apply for a professional identification card, called “ BTP card ”, for the employees concerned.

To obtain that card, the employer must make a declaration to the CIBTP France (the body association in charge of cards) before the posting and for each of the employees concerned via the online platform. It makes that declaration after making the prior declaration of posting on the SIPSI teleservice. Information previously captured by the SIPSI teleservice can thus be retrieved using the reference number of the prior declaration of posting. Before making the declaration to request a card, the employer informs employees that personal data relating to them have been sent to the CIBTP France. The employer must also provide the employee with the information document on the applicable French labour law rules, which is available on the CIBTP France website.

From 1 April 2024, the BTP card issued to posted employees will be valid for 5 years. The employer is therefore not required to apply for a new card if the employee being posted already has a valid one. Prior to the posting, however, the employer must update the card on the SIPSI online platform by providing the number of the new preliminary declaration relating to the posting.

Until 1 April 2024, when the posted employee is an interim employee hired by a temporary employment agency established outside of France : 

• The prior declaration of posting is always completed by the employer, i.e. the temporary employment agency ;
• However, the application for a BTP card is not completed by the employer but by the user company, regardless of whether said company is established in France or abroad (case of posting to a user company established outside of France when the employee is required to work in France to perform their duties). The application is then made directly on the online BTP card website by the user company.

From 1 April 2024, given that the card will be valid for 5 years, the user company will no longer be responsible for applying for the BTP card – that responsibility will lie with the employer, i.e. the temporary employment agency established outside of France.

Affiliation to a paid leave and “ bad-weather ” fund

Employers established outside of France from the construction and public works and entertainment sector (i.e. those in which, due to their activity in France, posted employees are governed by extended French collective agreements on the construction and public works and entertainment sectors) must necessarily be members and contribute for their employees to the paid leave funds set up for these occupations. In the construction and public works sector, employers must also contribute towards employees’ compensation in case of bad weather.

It should be noted that leave funds also exist for employees of road transport companies and dockers.

Leave funds manage and pay out employees’ holiday pay. Paid leave funds replace employers for the payment of allowances and are financed by the contributions made by the employers concerned.

However, companies posting employees capable of proving that they are already affiliated to an equivalent fund or scheme in their country of origin (holiday pay and bad weather pay for the construction and public works sector) are exempt from this obligation.

Criminal penalties

In case of non-compliance with the obligation to be affiliated to a paid leave fund, the employer may be punished by a 5th class offence, as many times as there are posted employees involved.

The obligation of affiliation for companies in the construction and public works sector

General case

• Construction companies must be affiliated and contribute to the BTP Bad-Weather Leave Fund (Caisse de Congés Intempéries BTP) of the place where the service is provided. After an initial posting mission and an initial affiliation, these companies may continue as members of the first fund, which is then called the “referent” fund ;
• Companies in the public works sector must be affiliated and contribute to the National Fund for Public Works Companies (Caisse Nationale des Entreprises de Travaux Publics, CNETP).

Exceptions

Are exempt from affiliation :

• Construction and public works companies established in Germany, Austria and Italy pursuant to framework agreements concluded with French paid leave funds. These companies must declare the employees that they post in France to the fund to which they are affiliated in their country of establishment and send this declaration to the competent French paid leave fund ;
• Companies established in another EU Member State or one of the Member States to the European Economic Area agreement, where they prove that the employees they post in France benefit, for the duration of posting, from the same rights under conditions that are at least equivalent to those provided for by French law. When these companies are affiliated to an equivalent institution to paid leave funds (as well as to the compensation scheme for bad weather in the construction and public works sector) in the country in which they are established, they must ensure that they are up to date with their obligations in respect of said institution on the date on which the service starts and that they have continued to contribute to said institution during temporary posting.

The obligation of affiliation for companies from the entertainment sector

Annual holiday leave for artistic and technical staff employed intermittently is paid by the Entertainment leave fund (Caisse des congés spectacles). Employers posting entertainment artists and technicians in France must be affiliated and contribute to this fund.

More information is available on the Audiens website, and in the guide on entertainment leave containing a frequently asked questions section.

Are exempt from affiliation :

• Companies in which all employees sent to France have been in continual employment with the same employer for at least 12 months preceding the request for leave ;
• Companies established in another EU Member State or from one of the Member States to the European Economic Area agreement, where they prove that the employees they post benefit, for the duration of posting, from their rights to paid leave under conditions that are at least equivalent to those provided for by French law. When these companies are affiliated to an equivalent institution to paid leave funds in the country in which they are established, they must prove to Audiens that they are up to date with their obligations in respect of said institution on the date on which the service starts and that they have continued to contribute to the competent institution during temporary posting.

The employers’ obligation to store and provide documents relating to posted employees and its activity to the Labour Inspectorate

The Labour Inspectorate is the inspection body whose main purpose is to ensure compliance with labour law in France.

The Labour inspector has the right to enter establishments, premises in which home workers perform works and workers’ collective housing (save for home work carried out in inhabited premises, without the authorisation of the individuals occupying said premises). He is entitled to interrogate employees (and any persons on the inspection site) in order to collect personal information (identity, place of residence, etc.) and information on working and posting conditions.

Where a violation is found, he may draft a report which is sent to the public prosecutor. He may also observe a breach of obligations relating to posting and suggest that an administrative fine be issued by the competent regional director. He informs the person concerned of the events likely to constitute a criminal offence or those which may result in an administrative fine as well as the penalties incurred.

In addition to this general obligation, and to enable the labour inspectorate to ensure compliance with posting rules documents in French (with the amounts converted into Euros) listed by the Labour Code must be provided without undue delay at the Labour Inspectorate’s request.

Documents translated into French to be kept and provided without undue delay

Documents relating to the situation of posted employees

The employer or his representative is required to store and provide the Labour Inspectorate with the documents listed hereafter containing information on posted workers, without delay.

a) Regardless of the duration of posting, the following must be stored :

• The employment contract or any equivalent document confirming the employee’s place of employment, if a written copy exists ;
• Any document proving effective payment of wages ;
• A statement of hours indicating the start, end and duration of each employee’s daily work times ;
• The document providing an “ equivalent ” medical examination in the country of origin ;
• Where applicable, the work permit enabling an employee from a third country to perform an activity in France.

AND

b) For a posting period of one month or more :

• The payslips of each posted employee or any equivalent document providing proof of remuneration and containing the following indications :
• Gross remuneration ;
• Period and working hours to which the salary relates, distinguishing between hours paid at the normal rate and those including a mark-up ;
• Leave and bank holidays, and related elements of remuneration ;
• Conditions governing paid leave funds and bad weather, where appropriate ;
• Where appropriate, the name of the industry-specific collective agreement applicable to the employee.

OR

c) For a posting period of less than one month :

• Any document providing proof of compliance with minimum wage.
   

Documents relating to the company posting the employee

If the company is established outside of the European Union, the document proving the regularity of said company’s situation with regard to an international social security agreement concluded with France, or failing that, the certificate of provision of social declarations issued by the French social protection organisation responsible for collecting social security contributions, less than six months old.

These documents must be stored on national territory (workplace, or where materially impossible, in any other place accessible to the representative), unless there are arrangements enabling their access and consultation from national territory without undue delay (e.g.: remote access via a website). In practice, documents may be provided to the inspection officer in paper or digital format.

Penalties

1. Breaching the obligation to provide these documents translated in French may incur an administrative fine of up to €4,000 per posted employee (€8,000 in case of reoccurrence within a period of two years) with a total limit of €500,000 ;
2. The administrative authority, i.e. the DREETS (Regional Directorate for the Economy, Employment, Labour and Solidarity), may decide to suspend performance of the provision of services for a period of one month at most when the employer does not provide the documents translated in French to the Labour Inspectorate for the purposes of verifying compliance with the legal minimum wage, the minimum duration of daily and weekly rest and the maximum duration of daily and weekly work. The same applies where said employer provides deliberately incorrect documents. The DREETS will lift the suspension as soon as the breach is rectified ;
3. Preventing a Labour Inspection officer from performing his duties is an offence punished by one year of imprisonment and a fine of 37,500 euros.

Other documents to provide to the Labour Inspectorate

Other documents may be request by the French Labour Inspectorate to ensure compliance with the application of labour law : 

• During their visits, labour inspection officers may also request the provision of all books, records and documents made mandatory by the labour code or by a legal provision relating to the labour scheme. However, these documents are not subject to the obligation of translation into French ;
• Inspection officers may be provided with or immediately obtain a copy of all documents proving compliance with Labour Code provisions to investigate and observe offences of illegal work ;
• Inspection officers may be accompanied by a sworn translator.

Penalties

In case of an offence of obstruction, i.e. the employer’s refusal to submit to an inspection or when the employer provides the Labour inspector with false information or information that is found to be incorrect, the latter shall incur one year of imprisonment and a fine of 37,500 euros.

In case of refusal to present books, records and documents made mandatory to the labour inspectorate, the employer incurs a fine of up to 450 euros.

For temporary employment agencies (TEA)

In addition to being subject to the obligations set out for companies posting their employees in France, temporary employment agencies (TEA) established outside of France and providing interim employees to a user company in France are also subject to the following specific obligations under provisions specific to temporary employment law in France and applicable to the TEAs established in the country :

Compliance with French provisions specific to temporary employment

Temporary employment agencies established outside France which make their temporary staff available to French user undertakings must apply all the French rules on temporary employment (see: Rules on temporary work contracts) in particular :

• Rules relating to cases in which recourse to temporary employment is authorised ;
• Rules relating to assignment contracts concluded between the temporary employment agency and the employee ;
• Rules relating to labour supply agreements concluded between the temporary employment agency and the user company (with the mandatory indications provided for under Article L. 1251-43 of the Labour Code).

Interim employees posted in France benefit from the same legal and conventional rights as other employees working in the user company, whether as regards the duration of work, collective facilities (transport, cafeteria, meal vouchers, showers, lockers, etc.) or remuneration (at least equal to that a user company employee with equivalent qualifications and post would receive) :

• Benefit from an end-of-assignment allowance, save for temporary employees on a permanent contract in their country of origin ;
• Must be listed on the French user company’s official employee register ;
• Must be counted in the French user company’s workforce.

Penalties

In case of non-compliance with these provisions, the labour inspectorate drafts a report. The temporary employment agency is then liable to a fine of € 3,750 (in case of a repeat offence, liable to a fine of € 7,000 and six months of imprisonment).

Additional documents to provide in case of inspection

In addition to the general list of documents to be provided in French in case of inspection are the following documents :

• The document proving obtainment of financial collateral (or proof of equivalent collateral in the country of origin) ;
• The documents containing the mandatory indications for the assignment and labour supply agreement.
   

Financial collateral

As for any temporary employment agency operating in France, the temporary employment agency established abroad must prove the existence of financial collateral in order to ensure that posted employees are paid all of their wages and wage supplements owed during the entire period of posting within French territory, in the event of non-performance on its part.

Financial collateral is a surety bond taken out with a mutual or collective guarantee company, an insurance undertaking, a bank or a financial institution established in France, in the European Union or in the European Economic Area and authorised to grant bonds and operate on French territory.

The financial collateral taken out abroad must indicate the name of the guarantor company, its address, the effective date, the expiry period. It must indicate the name of the temporary employment agency and the guaranteed amount. This amount must cover all wages, allowances and supplements owed to interim workers posted on French territory, including the end-of-assignment allowance, where applicable, and the compensatory allowance for paid leave.

A copy of proof of obtainment of this financial collateral must be provided to the user company.
In all documents relating to the temporary employment agency (labour supply and assignment contracts), the details of the financial collateral and the mandatory guarantees covered (payment of wages and their supplements, payment of applicable allowances) must necessarily be indicated.

The guarantees taken out with companies established in a Member state of the European Economic Area or Switzerland are considered equivalent when they offer the same degree of protection to posted interim employees as the financial collateral to be taken out by a French TEA.

Penalties

In case of lack of financial collateral, the labour inspectorate drafts a report. The temporary employment agency is then liable to a fine of € 3,750.

User company obligations

The company using posted interim employees, established or operating on national territory, must :

• Comply with rules relating to cases in which assignment contracts are used, as for interim employees employed by French temporary employment agencies ;
• List such employees on the official employee register ;
• Count such employees in its workforce for the calculation of social thresholds.