Posted workers: news as of July 30, 2020

The issue of posted workers and its constant evolution has made it a real challenge for HR and Global Mobility managers in companies. Latest innovation: the directive will be reinforced on the 07/30/2020,  focusing on employer’s obligations.

Evolving standards

Legal norms governing the posting of workers were first established in 1996 by Directive 96/71 /EC, which aims was to standardize the applicable rules within the European Union and to ease free movement for European workers from one State to the other.  
This particular employment regime was reinforced in 2014 by Directive 2014/67/EC, which provided EU States with tools in order to give them a better control on the increasing use of posted workers.  
 
Eventually, given the seriousness and recurrence of the abuses observed, the 1996 directive was revised in 2018. Very strict rules were established in order to fight effectively against social dumping and protect posted worker’s rights. 
 
Next step: the evolution of the directive on July 30th, 2020, which notably strengthens the employer’s obligations. Here are some tips for you!

Knowing how to identify a posted worker (French example)

A seconded employee: 

  • Works for a company established outside of France and is sent by his employer to France for a limited period 
  • Keeps his employment contract in his country of origin and does not sign a French contract for the duration of his mission in France  
  • The secondment can take place according to 3 different scenarios:  
    • Secondment between companies of the same group  
    • Service provision in the context of a commercial agreement between the employer and a customer in France 
    • For the employer’s own account without a commercial contract with a customer in France

Understanding posted worker’s compliance

An increasing number of administrative tasks must be carried out before the secondment of an employee from one state to another, in order to be fully compliant with the law: 

  • Before posting: implementation of the prior posting declaration (SIPSI), designation of a representative of the company in France who acts as a liaison with the labor inspectorate, verification of residence documents. 
  • During the secondment: obligation to keep specific documents (local employment contract, social security certificate), ensure that working conditions meet local requirements (compensations and benefits, days off, scheduled breaks, etc.) 

The posting of employees is the third largest activity inspected by the French Ministry of Labour (11,579 inspections in 2017). Given the current COVID-19 situation, more and more controls are to be expected – the inspectors mainly check the implementation of formalities such as the posting declaration but also the employment and accommodation conditions of posted workers. 

As for any subject related to immigration, penalties for non-compliance are both criminal and administrative – it is therefore essential for companies to ensure their mobility policy is updated.

Integrate and adapt to new features from 07.30.2020

The directive mentioned above, which strengthens the rules applicable to posting, and whose transposition will be effective in France from July 30, 2020, includes the following changes: 

  • Creation of long-term posting: when a posting exceeds 12 months (18 months in case of exemption), any rules of the French labor code will apply to posted workers except the rules related to the conclusion/end of the contract and the non-competition clause. 
     
  • Revaluation of compensation: the remuneration of posted workers will have to be aligned with French remuneration as a whole, and no longer only with the French minimum wage. Posted workers should therefore receive the same salary as a French worker occupying the same position in accordance with the collective agreement applicable to the sector of activity.

Surround yourself with experts

The subject is complex and changing: if you have specific questions/subjects related to posting or any other immigration question (France/abroad), do not hesitate to contact our team of experts at [email protected] 

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