Posted workers' rights

In France, employees temporarily posted to the national territory benefit from the ‘core provisions’ of labour law if they are more favourable than their employment contract or the legislation of the posting State. In the areas listed below, the generally applicable, sector-specific statutory rules and contractual provisionsapply to them as though they were workers employed by undertakings in the same activity sector in France :

1.  Individual and collective freedoms in the employment relationship ; 
2. Discrimination and professional equality between women and men ; 
3. Maternity leave, maternity, paternity and child care leave, family-related leave ; 
4. Conditions for making available and guarantees owed to employees by undertakings engaged in temporary work ; 
5. Exercise of the right to strike ; 
6. Duration of work, compensatory rest, public holidays, paid annual leave, working hours and night work of young workers ; 
7. Conditions governing paid leave funds and bad weather ; 
8. Remuneration within the meaning of Article L. 3221-3, payment of salary, including increases for overtime ; 
9. Occupational health and safety rules, age at work, use of children ; 
10. Illegal work ; 
11. Reimbursement of professional expenses for special costs inherent to the function or employment, borne by posted employees when carrying out their duties, in respect of transport, meals and accommodation.

This section sets out the rights of employees posted under the legislation. However, if specific provisions are provided for by collective agreements, then in those circumstances those provisions shall apply.

Remuneration

At the very least, for the duration of the posted employee's posting and to compensate the latter's activity on French soil, s/he must be paid the remuneration stipulated by the French Labour Code or the extended branch-level agreement applicable to the activity performed in France.

How is the minimum remuneration amount to which a posted worker entitled calculated ?

Professional expenses

With effect from 30 July 2020, the set of rights applicable to posted workers provided for in Article L. 1262-4 of the Labour Code is extended to include, in addition to remuneration (a concept which replaces that of minimum pay), reimbursements in respect of professional expenses for expenses incurred by workers posted to perform duties, in respect of transport, meals and accommodation (Article L.1262-4, 11 (e)). 

Thus, the reimbursement of those professional expenses by the employer is compulsory, as from 30 July 2020, subject to the following cumulative conditions :

1. the assumption of the costs involved is made compulsory by statutory provisions or contractual provisions applicable to posted workers ; 
2. posted workers must move to or from their habitual place of work on the national territory or when they are temporarily sent by their employer from the normal place of work to another place of work ; 
3. this expenditure relates to transport, meals or accommodation. This expenditure is paid by the employer in addition to remuneration.

What are the employer's obligations ?

The employer has two obligations in terms of remuneration : 

1. To ensure that its employees posted to France are paid a level of remuneration (salary + salary supplements) that corresponds to the amount of remuneration paid to an employee employed by an undertaking established in France in the same sector. The comparison between the two amounts of remuneration must be calculated on the basis of gross amounts and does not take into account professional expenses paid in addition to remuneration. It will make it possible to determine the amount of the posting allowance to be paid to the employee, where appropriate, in addition to the employee’s remuneration for the period of work carried out in France to compensate for any difference in remuneration between the remuneration applicable in France and that paid under the law in the country of origin. Where the employer does not provide proof of all or part of the posting allowance in respect of remuneration or of professional expenses under the employment contract or the law governing that contract, the entire allowance shall be regarded as being paid as the reimbursement of expenses and shall be excluded from remuneration ;
2. Be able to demonstrate compliance with the aforementioned obligation at the request of the labour inspectorate by furnishing :
   • A payslip for a posting lasting one month or more ;
   OR
   • An equivalent document showing that minimum remuneration has been paid for a posting lasting less than one month ;
   AND
   • A document demonstrating that payment has duly been made.

Working time

The statutory and regulatory provisions as well as extended collective agreements applicable all lay down limits in terms of working time, compensatory rest periods, public holidays, paid annual leave, working time and night work in the case of young workers.

Maximum number of working hours

In France, the maximum number of working hours is 35 hours per week, from Monday 0.00 to Sunday 24.00. This statutory limit may be exceeded. Any hours worked over the statutory limit are thus considered to be overtime.

However, there are limits to the number of hours beyond which no further work may be requested: 

• 10 hours per day (unless an exemption is granted by the labour inspectorate or by extended collective agreement) ;
• 48 hours per week (absolute maximum, unless the labour inspectorate grants an exemption, up to 60 hours) ;
• 44 hours on average over a period of 12 consecutive weeks (unless otherwise provided by collective agreement or permitted by the labour inspectorate, up to 46 hours)

Overtime

Any hour worked over the statutory weekly limit is considered overtime, which entitles the employee to a wage supplement or, where applicable, the equivalent compensatory rest period.

Where there are no provisions laid down in an extended branch-level agreement, the number of additional hours worked is tracked per calendar week, from Monday 0.00 to Sunday 24.00. For employees posted for more than one year, total overtime may not exceed 220 hours per year (unless a collective agreement sets the overtime quota).

Payment for overtime is supplemented as follows (unless collective agreements stipulate differently, within the minimum public statutory rate of 10 %):
• 25 % for the first 8 hours over the statutory working time (between the 36th and 43 rd hour of work) 
• 50 % for hours thereafter (from the 44th hour)

Night work

Night work is considered to be any work performed between 21.00 and 6.00 (or between 22.00 and 5.00 or between midnight and 7.00 for editorial and industrial production activities associated with the press, radio, television, film production and broadcasting, performing arts and night club sectors).

Night workers are considered to be any employees who perform :

• Either at least 3 hours of night work at least twice a week ;
• Or 270 hours of night work a year (or any other annual rate set by extended collective agreement).

Daily night-time working hours must not exceed 8 consecutive hours (unless stipulated otherwise in agreements or work is organised in shifts). A collective agreement makes provision for compensation, either in the form of compensatory rest or wage compensation.

Night work must : 

• Remain exceptional ;
• Take into account the requirements for protecting worker health and safety ;
• Be justified by the need to ensure continuity in terms of economic activity or socially useful services.

Rest breaks

After 6 hours of work, the employee must benefit from a minimum rest break of 20 consecutive minutes.

Daily and weekly rest periods

The daily rest period : 
In France, all employees must benefit from a minimum daily rest period of 11 consecutive hours between two working periods.

The weekly rest period : 
An employer is prohibited from keeping an employee working longer than 6 days a week. As such, all employees benefit from a minimum weekly rest period of one day (i.e. 24 consecutive hours), in addition to the 11 hours' daily rest between two working days, which adds up to 35 consecutive hours of weekly rest.

In principle, the employer grants this weekly rest period on Sundays. The principle of Sunday as a day of rest is subject to exemptions which may, depending on the case, be permanent or temporary, perhaps subject to authorisation, and applicable nationwide or simply to certain specifically defined areas (see the website of Ministery of labour).

Compensatory rest periods

Posted employees may benefit from compensatory rest periods, i.e. compensation in the form of rest instead of wage supplements for overtime, under the terms stipulated by the applicable agreements.
Unless stipulated otherwise by the branch-level collective agreement: the posted employee's employer may provide for a compensatory rest period by unilateral decision.

Such a rest period must be taken within two months and mention of the rest entitlement must be appended to the payslip.

Paid leave

In accordance with French law, all posted employers benefit from a right to paid leave, at a rate of 2.5 days per actual month worked. Where a posted employee works less than one month, the right to leave is calculated on a pro rata basis as follows: number of days worked / 26 days per month (working 6 days a week, i.e. 52 weeks / 12 months x 6 days = 26 days)

As regards annual leave, the employer must pay a minimum holiday allowance of 1/10th of the amounts received during the period of an employee's posting in France (over the annual period of reference, from 1 May of one year to 30 April of the following year);

NB : the amount may not be less than the remuneration that the employee would have received if s/he had worked in France over the leave period acquired during the posting.

In addition, in accordance with French law, posted workers are entitled tostatutory leave for family events. These are exceptional authorisations of absence, which shall not lead to a reduction in remuneration. Upon production of supporting documents, all employees are entitled to at least : 

• 4 days for the employee’s marriage or civil partnership ; 
• 3 days for a baby or adoption of a child by an employee ; 
• 2 days for the death of a child ; 
• 2 days for the death of a spouse ; 
• 1 day for the marriage of a child ; 
• 1 day for the death of a father, mother, stepfather, stepmother, brother or sister ;
• 2 days for the news of a child’s disability.

The applicable branch-level agreements should be referred to, as these may provide for longer periods of leave for such family events.

Posted female employees are protected as regards pregnancy and motherhood : 

• they are entitled to maternity leave (at least 6 weeks before the due date and 10 weeks after the birth) ;
• they also benefit from protection against dismissal. During maternity leave (6 weeks before the due date and 10 weeks after the birth), the following annual leave (5 weeks) as well as a period of 10 weeks following the maternity leave and annual leave, so for 35 weeks in total, dismissal is prohibited except where the employer demonstrates serious misconduct unconnected with the pregnancy or that it is impossible to maintain the employment contract on grounds that have nothing to do with the pregnancy.)

Posted male employees are also entitled to paternity leave (11 consecutive calendar days to be taken within the 4 months following the birth, on condition that the employer is given one month's notice).

Requirement to register with a paid leave fund for specific activities

Employers established outside France but posting employees to France, whose main activity falls under the scope of collective agreements applicable to construction and civil engineering or performing arts, dockers and transport, must register with a competent paid leave fund, unless they are able to demonstrate membership of an equivalent scheme in their country of origin.

For more information, see " Obligations of the employer of posted employees ".

Public holidays

In France, 11 statutory dates are defined as public holidays (1 January, Easter Monday, 1 May, 8 May, Ascension Thursday, Whit Monday, Bastille Day (14 July), Assumption (15 August), All Saints (1 November), 11 November and 25 December).

1 May is the only day that employers must allow employees to take off (except where they demonstrate that the nature of the activity requires continuous production) but still be paid. Not working on 1 May cannot lead to a reduction in earnings. Where work is authorised on 1 May, the hours worked are subject to a 100 % supplement.

That said, when working on a public holiday, posted employees may be entitled to a wage supplement where the extended branch-level collective agreement makes provision in this regard.

Occupational health and safety and accidents at work 

All posted employees in France benefit from rules regarding occupational health and safety. Employers must implement medical monitoring, which entails all measures aimed at preventing any deterioration in employees' health or their working conditions. Similarly, employers must implement all measures aimed at preventing any risk that might endanger their employees.

Medical monitoring

Medical monitoring prior to the posting

Employers established outside France must comply with the provisions of the French Labour Code in terms of occupational health, particularly the requirement for medical monitoring. Employees posted to France benefit from such monitoring in the same way as other employees in France.

When the employer is established in a Member State of the European Economic Area or Switzerland, it may fulfil this requirement outside France if it can prove that its employees benefit from equivalent medical monitoring, in the country where it is established, to the provision in France.

In the absence of prior medical attention recognised as equivalent (in the case of workers from third countries, or European employees with no effective medical cover), posted workers must benefit from specific medical examinations provided for by French law. 

• For workers covered by a pre-recruitment medical examination in the context of enhanced individual follow up (for employees exposed to particular risks to their health), this examination must be carried out before the mission starts in France ; 
• For all workers, an information and prevention visit shall be carried out within three months of the start of the mission in France.

Medical monitoring during the posting

During the posting, irrespective of the level of medical monitoring in the country of origin, the French rules on preventing a deterioration in employees' health and the periodicity of assessments must be complied with.

In the event the posted worker can demonstrate equivalent medical monitoring, the first medical assessment takes place at an interval set by the French Labour Code following the last assessment performed in his/her country of origin, as follows :

• Pursuant to the provisions of Article R. 4624-28 of the Labour Code, for workers benefiting from heightened personal monitoring in France, this assessment must be carried out, by the occupational physician, at an interval which the latter shall determine but which may not exceed 4 years following the last assessment performed in the country of origin. An intermediate assessment shall, moreover, be performed by a healthcare professional within two years of the last assessment performed in the country of origin ; 
• Pursuant to the provisions of Article R. 4624-16 of the Labour Code, for workers benefiting from an information and prevention session in France, this shall be held within five years of the assessment performed in the country of origin.
  Where there is no equivalent medical monitoring, the periodicity of medical assessments is calculated on the basis of the first assessment performed in France and according to the rules of the French Labour Code as set out above.

Accidents at work

Where a posted employee suffers an accident at work, the employer must report it without fail to the labour inspectorate of the place where this accident occurred, within two working days.

This report must be made by the contractor or user company in the case of a service provision contract, or by the employer in the context of posting for own account.

Any format or means may be used to make this report. The employer is also required to report the accident with respect to insurance cover for accidents at work provided by the social security of the country of membership.

Occupational safety

A company established outside France but which posts employees to France must comply with the rules bearing on worker safety.
The general prevention principles lay down a safety requirement, which calls for an occupational risk assessment, prevention, information and training measures as regards employees and the organisation of suitable procedures and means.

In this context, the foreign service provider operating in France must ensure the safety of employees' workplaces by factoring in the occupational risks to which the latter may be exposed during their posting in France (protection against atmospheric conditions, wearing a helmet, protection when working at a height, etc.).
In a situation of serious or imminent danger, posted employees, like all employees in France, have a right to warn the employer and withdraw from any situation of serious and imminent danger.

For safety rules, the following apply in particular :

• The safety rules applicable to work performed in an establishment by an outside company: pre-commencement inspections of the workplaces by the head of the user company and head of the outside company, joint risk analysis, risk prevention plan, asbestos removal plan, etc ;

• The technical requirements for construction sites and civil engineering operations, as well as the rules governing work on apartment or office buildings, the coordination of safety on construction sites, etc.

  For rules on using work equipment, these mainly concern :

• European rules governing the free movement of equipment ;
•  Rules governing inspections on work equipment, which must be conducted by competent staff in the meaning of French practices or regulations.

For rules governing employee training, these concern requirements regarding :

• Mandatory qualifications for certain activities, demonstrated by a certificate, such as for working in high-pressure or industrial radiology environments ;
• Appropriate training that must be given to certain categories of workers (who conduct maintenance or repairs for example) and users of work equipment (operating machinery for example).

Accomodation

Accommodation of posted employees

Foreign companies posting staff to France are not required to provide accommodation for posted employees.

If the employer or host company to which the posted workers are hired out does decide to organise collective housing for posted workers, this must comply with the relevant provisions of the French Labour Code.

General case : the main characteristics and minimum equipment of housing

Workers must not be housed in premises designated for industrial or commercial use. The floor area and volume must not be less than 6 square metres and 15 cubic metres per person. The parts of the premises which are less than 1.9 metres in height shall not be counted as floor area.

These premises must have a permanent ventilation system in place. They must have windows or other transparent openings overlooking the outside, equipped with blinds or curtains. The worker must be able to close the housing unit and come and go as s/he pleases.

The equipment and characteristics of these premises must maintain the indoor temperature at a minimum of 18°C and avoid condensation and excessive temperatures. Electrical appliances must be compliant.
Each couple must have their own bedroom. Each person or couple must have the necessary bedding and furniture for their own exclusive use, kept clean and in a good condition.

Dormitory rooms must only be occupied by people of the same sex. The number of people per room shall be limited to 6. Beds shall be at least 80 cm apart. Bunk beds must not be installed.

The flooring and wall coverings of premises must enable effective upkeep and be renovated whenever their condition requires it. Premises used for housing must be kept clean and fit for living in at all times.

Wash basins with temperature-adjustable drinking water, as well as towels and soap, must be provided to housed staff, with at least one wash basin per 3 people. Toilets and urinals must be installed near accommodation rooms. Temperature-adjustable showers must also be installed near accommodation rooms, in individual cubicles, with at least one cubicle per 6 people.

Penalties : 

• Failure to provide the required housing conditions (substandard housing) may lead to the service provision being suspended for at least one month by the administrative authority - in this instance the Regional Directorate for Enterprises, Competition Policy, Consumer Affairs, Labour and Employment (DIRECCTE) ; 
• Moreover, the latter may impose an administrative fine of up to € 4,000 per posted employee (€ 8,000 in the event of repeated failure within two years), up to a total amount of € 500,000 ;
• In addition, where personal misconduct results in a failure to comply with the provisions on housing conditions, a €10,000 fine shall also be imposed (Article L. 4741-1 of the French Labour Code), with repeated failure punishable by a € 30,000 fine and one-year prison term.

Specific cases : the main characteristics and minimum equipment of housing in the construction and civil engineering sector and agricultural sector

Regarding the construction and civil engineering sector

On construction sites where workers are housed, housing must comply with the requirements incumbent upon the employer as regards the housing conditions set out above as well as evacuation and prevention of fire risks.
That said, where temporary facilities are concerned, these provisions do not prohibit the use of such mobile homes as camper vans or caravans, as long as compensatory measures are taken to provide workers with at least the equivalent housing conditions.

Access roads to workers' housing shall be kept passable and suitably lit.

Situations in which posted workers are given bed and board within the vicinity of construction sites are determined by the national collective agreements bearing on such workers.

The employer is prohibited from allowing workers to stay on the site which the main contracting party has made available, unless the housing occupied presents living conditions that are least equivalent to those stipulated in the French Labour Code.

The Labour Inspector may grant exemptions where the operating conditions of the construction site make it difficult to apply the requisite measures.

Regarding the agricultural sector

Agricultural undertakings, companies, establishments or employers may provide accommodation for employees and members of their family in stationary housing. This must meet the requisite conditions, not least in terms of cleanliness and comfort.

Agricultural employees may not be accommodated underground or in tents. They must be able to close their housing unit and come and go safely and as they please.
The accommodation must meet the same requirements in terms of safety (waterproof and protected from hazardous or harmful substances, pests and excessive temperatures). The ceiling height must not be less than two metres. 
The building materials used must not be likely to harm occupants' health and must enable the premises to be evacuated safely in the event of fire. Fuel-burning appliances for heating and cooking, as well as their ducts, sheaths and accessories must not be likely to harm occupants' health or safety. Electrical fixtures must be safe for users. Corridors and stairs must be sufficiently lit to enable occupants to move about safely.
In living rooms and bedrooms, the surface area of windows must be at least equal to one tenth of the floor area of each room. In bedrooms, the windows must be equipped with blinds or curtains.
Water fittings must ensure a continuous supply of drinking water, with sufficient pressure and flow and be temperature-adjustable. Toilets must not open out directly onto living or dining rooms.

Individual housing made available to workers and, where applicable, their family, shall comprise: a kitchen or kitchen area, at least one room with a living and sleeping area measuring 9 sq.m. when the kitchen is separate and 12 sq.m. when a kitchen area is laid out in the room. The floor area of the housing may not be less than 14 sq.m. for the first occupant, with an additional 7 sq.m. for each additional occupant. 
If a worker is required to pay for his/her own water, gas and electricity use, this must be recorded by meters specific to the housing s/he occupies. 
The worker shall be responsible for the routine maintenance of this housing.

For workers accommodated in collective housing and recruited for a limited period, dormitories may accommodate up to 6 workers. Their minimum surface area shall be 9 sq.m. for the first occupant, with an additional 7 sq.m. for each additional occupant. Bunk beds must not be installed. Separate dormitories shall be provided for men and women. Premises intended for eating meals shall comprise a kitchen area and dining area with a minimum surface area of 7 sq.m. per seasonal worker, plus an additional 2 sq.m. for each additional person.

Where seasonal workers are hired on fixed-term contracts, they may be housed in the context of their employment in mobile or portable structures.
Pop-up campers must not be used. The accommodation must meet the same requirements in terms of safety (waterproof and protected from hazardous or harmful substances, pests and excessive temperatures). The ceiling height must not be less than two metres. 
Accommodation must include the following furniture and fixtures: heating, compliant electrical appliances, drinking water with sufficient flow and temperature-adjustable, toilets, a cupboard for personal use and complete bedding in good condition. Premises where meals are prepared and eaten shall contain the necessary equipment for the intended number of occupants.
Accommodation for sleeping may be used by up to six workers. Its surface area must be at least 6 sq.m. per occupant. When there are no more than three seasonal workers using this accommodation, they may also eat their meals there. Bunk beds must not be installed. 
Separate dormitories shall be provided for men and women. 
When there are more than three seasonal workers, they shall be provided with premises for eating meals, comprising a kitchen area and dining area with a minimum surface area of 7 sq.m. per seasonal worker, plus an additional 2 sq.m. for each additional person. 
When the accommodation does not come complete with washing facilities, a shower room equipped with one wash basin for every three people must be provided. This shall also contain one shower cubicle for every six people. Toilets shall be installed, with one for every six people. Separate showers, wash basins and toilets shall be provided for men and women.

The head of establishment shall ensure or pay for: the upkeep of the premises, furniture and fixtures, daily cleaning of the premises, washing of sheets at least every fortnight and of all bedding every time there is a change in occupant, as well as the collection of household waste twice a week.

For some provisions, exemptions may be requested from the labour inspectorate, which may nor may not grant the request.

Individual and collective freedoms in the workplace

Right of expression in the host company and integration

Posted employees via intra-group transfers and temporary agency workers (under ordinary law) have a right to direct and collective expression. This is exercised in the workplace during working time and is therefore remunerated as working time. 
The right to direct and collective expression concerns the working conditions of the host company, the quality of their organisation and desirable improvements to the work unit to which they belong.

The exercise of the right of expression may not be a ground for imposing penalties or dismissal.

In addition, employees supplied by a temporary employment agency shall be taken into account in calculating staff numbers at the host undertaking established in France, in proportion to the period of their presence over the previous 12 months. 

However, they are excluded from staff numbers when they replace an employee who is absent or whose employment contract is suspended (e.g. maternity leave).

The right to strike

Posted employees benefit from the right to strike pursuant to the terms laid down by French labour law. Accordingly, the employee may not be punished, dismissed or subject to a discriminatory measure on the grounds of normal exercise of the right to strike.

Equality in the workplace and non-discrimination

All posted employees benefit from all the provisions of the French Labour Code bearing on gender equality in the workplace and non-discrimination. 
No one may be punished, dismissed or subject to a discriminatory measure on the grounds of his/her origin, gender, morals or sexual orientation, his/her age, family circumstances, genetic characteristics, ethnicity, nationality or race, political opinions, trade union or mutual activities, his/her religious beliefs, physical appearance, family name or, except where the occupational physician reports unsuitability on medical grounds, his/her health or disability.

The rules applicable to long-term posting

Where employees are posted to France for more than 12 months or 18 months if their employer made a declaration allowing derogation from the application of the status of long-term posted worker (see ‘Employer’s obligations in relation to posted workers’), they have greater rights than those resulting from the application of the ‘core’ provisions.

In the event of replacement of a posted employee by another posted employee in the same job, the 12-month period is reached once the cumulative period of the posting of the successive employees in the same job is 12 months. It is necessary to assess, in each situation, whether the posting is the same on the basis of the overall evidence : 

• Same job : Directive (EU) 2018/957 provides that the concept of ‘the same task at the same place’ is determined by taking into account in particular the nature of the service provided, the work performed and the address(es) of the workplace(s), information on the prior declaration of posting completed by the employer ;

• Same service contract with an employer and an unchanged customer.

  The long-term posted employee thus benefits, in addition to the areas covered by the ‘core’ provisions, from the following :
  as regards the various types of leave provided for in the Labour Code, long-term employees are entitled to the following leave, provided they satisfy the relevant conditions:

• Leave provided for by law : adoption leave, childcare leave: parental leave for education and part-time work, sick leave for a child (sick child leave and parental presence leave) ;
• In the event of refusal by the employer, the employee may refer the matter directly to the Conseil de Prud’hommes [labour tribunal], ruling in the form of applying interim measures: leave for the acquisition of French nationality, family solidarity leave, carers’ leave, mutual leave for training, training leave for executives and youth workers, leave for natural disasters and international solidarity leave ;
• Other leave: sabbatical leave, business creation leave and leave for representation.

In addition, long-term posted workers made available to a host undertaking in the case of a labour loan transaction are voters in professional elections. However, employees of temporary employment agencies do not have the status of voters in the user undertaking.

In the case of vocational training, long-term posted workers will be able to benefit in France from vocational training courses funded by the skills operators (OPCO) in two cases : 

• The non-national undertaking employing employees posted to France is liable to contribute to funding the vocational training scheme in so far as it has in France a ‘centre of operations of a sufficiently permanent nature with a certain degree of autonomy’ ; 
• Their employer voluntarily pays the ‘vocational training’ contribution.

Finally, in the event that they may during their posting in France make use of teleworking, they will benefit from provisions relating to that form of work. Conversely, the rules on procedures, formalities and conditions governing the conclusion and termination of the employment contract, including non-competition clauses, as well as supplementary occupational pension schemes, do not apply to long-term posted workers.