Newsletter No. 140 - August 2020

An Air France airline steward had committed a theft in a hotel in which he was staying in Istanbul as a crew member. The employee had been dismissed on grounds of serious misconduct for having failed to meet his professional obligations, and for having undermined the company’s image. If a ground pertaining to personal life cannot, in principle, justify a disciplinary dismissal, the French Supreme Court (Cour de cassation) however admits that a contractual breach may be established when, notably, the facts are linked, through certain elements, with the employee’s personal life. In this case in which the facts were not substantially challenged, the Cour de cassation decided that the employee’s wrongdoings, although committed outside the working hours and working place, pertained to the professional sphere on several grounds: the theft had been committed during a stopover in a partner hotel of the company which had reserved the rooms at its costs, the hotel had informed Air France of the facts, and the victim had not lodged a complaint due to the company’s involvement (Cass. Soc. 8 July 2020, No. 18-18.317).

In a decision of 8 July 2020, the Cour de cassation provides details as to the notion of “bad faith” in relation to the protection of a whistle-blower: bad faith can only result from the knowledge by the whistle-blower of the falseness of the facts they report, and not simply from the unproved nature of these facts (Cass. soc. 8 July 2020, No. 18-13.593).

The European directive of 16 December 1996 as amended on 28 June 2018 relating to the status of posted workers was transposed into national law by the order No. 2019-116 of 20 February 2019 and the decree No. 2020-916 of 28 July 2020. These new provisions are effective as of 30 July 2020. Prior to this date, pursuant to the provisions of article L.1262-4 of the Labor code in its previous version, a foreign employer had to apply to its employees posted in France a limited number of legal and conventional provisions of French law, and like so, during the whole posting duration. As from 30 July 2020, this minimal basis was modified (point “8” relating to remuneration) and extended to business expenses (point “11”). It now corresponds to the following matters: 1 Individual and collective freedoms in the working relationship 2° Discriminations and professional gender equality 3° Maternity protection, maternity leaves (…); 4° Supply conditions and guarantees owed to employees by companies carrying out a temporary work activity; 5° Exercise of the right to strike; 6° Working time, compensatory rest (…); 7° Conditions of liability to the paid leave and bad-weather allowance funds; 8° Remuneration in the meaning of article L.3221-3, payment of wages, including increases for extra hours; 9° Rules relating to health and safety at work, (…) 10° Illegal work; 11° Reimbursements made in relation to professional expenses corresponding to charges of a special nature inherent to the posted employee’s duties or position and borne by said employee, while carrying out his or her assignment, regarding transport, meals and accommodation.”

More importantly, this minimal basis now only applies during the first 12 months of the posting period. Thus, starting on the thirteenth month, an employer temporarily posting an employee in France shall be subject to all of the provisions of the Labor code, with the exception of those relating to the formation of the employment contract, to its performance, to its modification on economic grounds, to its transfer and to its termination, to secured voluntary mobility, to checks and simplified work permits, and to certain contracts (fixed-term contracts, assignment contracts, works contracts). A foreign employer shall however be able to request an extension of the period of application of the initial rules. In order to do so, they shall fill in for each concerned posted employee, the certificate of posting using the teleservice “SIPSI”. They shall indicate the reason for the extension, along with its duration, within a six-month limit. Non-compliance with the extension request is punishable by an administrative fine of 4,000 euros per employee (D. No. 2020-916 of 28 July 2020, Official Journal of 29 July).

In small disputes, Labor courts decide at first and last instance, which means that their decisions are not subject to appeal: the only remaining possibility being through the “cassation” process. As from 1 September 2020, the maximum amount of the requests processed by these courts at first and last instance increases from 4,000 to 5,000 euros (D. No. 2020-1066 of 17 August 2020, Official Journal of 19 August).

As part of the economic recovery plan, a decree of 5 August 2020 institutes an employment subsidy for hiring youths under the age of 26. The contract may be a permanent contract or a minimum three-month fixed-term contract. The conclusion date shall occur between 1 August 2020 and 31 January 2021. The amount of the subsidy shall be equal to a maximum of 4,000 euros for an employee (D. No. 2020-982 of 5 August 2020, Official Journal of 6 August).

Two decrees of 24 August 2020 give the possibility to grant a subsidy in relation with the first year of an apprenticeship contract or a professional training contract entered into between 1 July 2020 and 28 February 2021. The amount of this subsidy is 5,000 euros for a minor and 8,000 euros for an adult. The subsidy is granted to employees under 30 aiming at a degree or title of level 7 or less (master level). It is also available to professional training contracts aiming at the obtaining of a professional qualification certificate (CQP) (D. Nos 2020-1084 and 2020-1085 of 24 August 2020, Official Journal of 25 August).

A new health protocol the publication of which is imminent should be applicable on the following day within companies. This text would recommend the use of telework, as it contributes to the strategy of prevention of the risk of infection with the SARS-CoV-2 and allows to limit crowds in public transportation. Telework could be reinforced “as part of the measures decided by local authorities” on the basis of health indicators. The wearing of a mask shall become the norm in confined and shared spaces in companies. It shall be mandatory in corridors, cloakrooms, open spaces, meeting rooms and shared vehicles. The one-meter physical distancing space between an employee and any other person shall be maintained. The protection measures concerning the employees or any person entering the workplace shall be integrated into the internal rules.

DISCIPLINARY DISMISSAL: Theft committed outside the working hours.

WHISTLE-BLOWER: When is a whistle-blower acting in bad faith?

POSTING: Since 30 July 2020, the provisions of the Labor code apply to employees who have been posted outside of France for more than twelve months.

PROCEDURE: Extension of the labor courts’ jurisdiction at last instance.

EMPLOYMENT SUBSIDY: Exceptional subsidy on hiring a youth under the age of 26.

EMPLOYMENT SUBSIDY: Exceptional subsidy on granting work-study contracts.

COVID-19: New health protocol for September 2020.