Bill to adapt domestic law to European Union law

News from December 20, 2022

A bill containing various provisions for adapting to European Union (EU) law is intended to transpose or bring French law into line with the Directives and Regulations that the EU has adopted over the last three years.

This bill was adopted by the Council of Ministers on November 24, then by the Senate on December 14, 2022 and must now be examined by the Social Affairs Committee of the National Assembly during January 2023. If this text concerns several fields, only the provisions inserted or modified in the Labor Code are analyzed here:

• Improved information to the employee at the time of hiring

L’article 4 de la Directive 2019/1152 du 20 juin 2019 a étendu la liste des informations à transmettre au travailleur lors de son embauche, ce que nous avions d’ailleurs évoqué lors de notre actu du mois de septembre 2022.

Indeed, insofar as no transposition into French law had been made, the provisions of the Labor Code had to be interpreted in light of the requirements of this Directive since August 1, 2022.

For the record, we mentioned in our news, the following new elements:

–>information must now be provided to employees, but also to trainees, apprentices and workers of matchmaking platforms;

–> the information to be transmitted in writing and individually by the employer is, in addition to the identity of the parties, the place of work, the position (title, grade, quality or job category), the starting date of the contract, the duration of paid leave and notice periods, the remuneration (basic amount, constituent elements, periodicity and method of payment), and the applicable conventions and collective agreements, :

– the duration and conditions of the trial period,

– the right to training,

– the complete procedure to follow in case of termination of the contractual relationship (notice period…),

– the identity of the social security organizations collecting the social security contributions and the social protection provided by the employer (including coverage by supplementary schemes).

Also, for temporary contracts, the end date or the foreseeable duration of the employment relationship should be mentioned, including for fixed-term contracts, and the identity of the user companies for temporary employment contracts.

Reduced transmission deadlines are also provided for, since August 1^st, 2022 :

– information on the identity of the parties, the place of work, the position, the start and end dates of the employment relationship, the length of the trial period, the remuneration and the working hours must be provided to the employee in the form of one or several documents, during the first week of work (7 calendar days);

– The other information must be provided within one month from the first day of work.

The expected transposition into French law will soon be done! Indeed, the bill provides for the insertion of a new article L 1221-5-1 in the Labor Code, under the terms of the agreement, the employer should provide the employee with one or more written documents setting out the main information relating to the employment relationship.

However, employers of employees on fixed-term and part-time contracts whose working hours do not exceed 3 hours per week or 4 consecutive weeks in a year would be exempt from this obligation, provided that they use the universal employment service voucher (Cesu).

However, an employee who has not received this information can only apply to the competent court to obtain it after having given his employer formal notice to provide him with the required documents or, if necessary, to complete the documents provided.

A decree should set out the terms of application of this article, in particular the list of information to be included in the disclosure document(s). In the absence of specific details on this point, these provisions would come into force the day after the publication of the law in the Official Journal (in practice, this entry into force would be subject to the publication of the decree) and they would apply to contracts entered into as from that date.

On the other hand, the text provides that for employees whose employment contract is in progress on the date of promulgation of the law, this information will only be provided at their request.

• A consolidated obligation to inform employees on precarious contracts about available permanent positions

It should be noted that the current wording of articles L 1242-17 and L 1251-25 of the French Labor Code stipulates that this information is conditional on the existence, in the company, of such a system for employees with a permanent contract.

The bill provides that the employer should, at the request of an employee holding a fixed-term contract with at least six months’ continuous service in the company, inform him or her of open-ended positions to be filled within the company (amendment of Article L.1242–17 of the Labor Code).

Here too, a decree will be required to set out the terms and conditions of application – which, in practice, will make the entry into force of these new provisions dependent.

The same system would be applied to temporary employees on assignment contracts (modification of article L.1251-25 of the Labor Code).

• Adjustments related to the length of the trial period

For the record, the provisions of the French Labor Code currently provide for a maximum trial period of 8 months for executives, it being specified that this period may be shorter when a collective agreement or the employment contract so provides or more than 8 months when a branch agreement signed before June 25, 2008 so provides.

This provision clashes with Article 8 of Directive 2019/1152, which provides for a maximum trial period of six months, with exceptions “where the nature of the employment justifies it or where it is in the interests of the worker”.

However, France has chosen to activate the provision of Article 14 of Directive 2019/1152 allowing Member States to ” authorize the social partners to to maintain, negotiate, conclude and enforce collective agreements, in accordance with national law or practice, which, while respecting the overall protection of workers, establish terms and conditions of employment for workers that differ from those referred to in Articles 8 to 13 ” .

However, the impact study, carried out in the context of this bill, specifies that the Labor Code must nevertheless be adapted in order to “limit the six-month trial period for executives to the eight months provided for by Article L.1221-21 of the Labor Code“.

It is under these conditions that the text provides for the deletion of the second paragraph of article L.1221-22, which currently allows branch agreements concluded before June 25, 2008 to provide for trial periods longer than the maximums set by article L.1221-21 of the Labor Code.

These provisions will come into force six months after the promulgation of the law, to give the social partners time to review the branch agreements concerned.

• Family leave

The bill provides for an amendment to Article L.1225–47 of the Labor Code to allow parents who are not employed at the time of the birth or adoption of the child to benefit from parental education leave.

In addition, it provides that when a full-time employee goes part-time as part of a parental leave of absence, the severance pay must be calculated on a full-time basis.

The draft text also seeks to amend Article L.1225-54 of the Labor Code, to specify that this provision only applies to full-time parental leave: “The duration of full-time parental leave is taken into account for half of the determination of the rights that the employee has from his seniority“.

In addition, it completes article L.1225-65 in order to extend the benefit of the preservation of acquired rights to parental presence leave.

With regard to paternity and childcare leave, the bill introduces a new article L.1225–35–2 which assimilates this leave to a period of actual work for the determination of seniority rights.

Consequently, periods of paternity leave have been added to the list of periods of leave considered as equivalent to presence in the company for the purpose of distributing the special profit-sharing reserve among employees.

This measure is finally in line with a provision of the law of August 16, 2022 on emergency measures to protect purchasing power, which includes paternity leave among the periods considered as presence in the company for the calculation of profit sharing.

Finally, the Labor Code and the Social Action and Family Code will also be amended to allow for the extension of caregiver leave and family solidarity leave to employees of private employers.

These new regulations, which are more protective for the employee and which will come into force in the next few weeks and/or months, will require the employer to adapt and to redouble his vigilance!