Updates on the posting of workers and the obligations of foreign employers
The General Directorate of Labour of the Ministry of Labour has recently communicated a new instruction concerning the regime of international posting of employees in France (DGT/RT1/2021, 19 January 2021). The purpose of this instruction is mainly to provide clarification in this area and, in particular, to facilitate Labour Inspection controls on compliance with the rules relating to the obligations and liabilities of foreign employers. In a context of increasing recourse to posted workers, this circular specifies the obligations of foreign employers towards posted workers in France.
In this respect, we would also like to point out two recent decisions of the French Cour de cassation, which demonstrate the strict control of the French administrative and jurisdictional authorities over the obligations of the foreign employer during the implementation of a posting operation (Cass., Crim., January 12, 2021, n° 17-82553; March 2, 2021, n°19-80.991).
The Cour de cassation ruled on the possibility of condemning a foreign company that was employing workers in France on the basis of undeclared work (Cass., Crim., March 2, 2021, n°19-80.991). In this case, a temporary employment agency registered in Slovakia had hired employees who were working permanently in France under the cover of a posting operation, in order to avoid French social protection rules. One of the issues in this case was whether the production of A1 certificates, which serve to guarantee the social protection of posted workers by the State of origin, is sufficient to prevent the criminal condemnation in France of the foreign employer on the grounds of undeclared work. The Cour de cassation stated that the A1 certificates of posted workers do not prevent a criminal condemnation on the grounds of undeclared work and dissimulation of activity. The person having recourse to undeclared work directly or through an intermediary can be condemned to a maximum of 3 years of incarceration and a fine of 45,000 € (225,000 € for a company).
This decision is not a new one, as the Cour de cassation already specified that the production of A1 certificates does not allow the foreign employer to escape a criminal condemnation on the basis of French law (Cass., Crim., January 12, 2021, n° 17-82553).
In the light of these updates, it is therefore recommended to be very careful when implementing a posting operation in France to ensure that the multitude of rules in favor of the workers is complied with and that the foreign employer does not incur administrative and/or criminal sanctions.