Requirement for Foreign Employees to Work
The employer must ensure that the employee to be hired is authorised to work in France:
- where the employee is already in France, the employer will have to check that the employee has a valid residence permit allowing him to work in France, and keep a copy thereof;
- where the employee is not yet established in France, the employer should undergo a three-step process “of introducing a foreign worker in France” –
- obtain from the French unemployment agency (“France Travail”) a document certifying that there are no workers available to fill jobs in the country;
- file to the labor authorities (i.e. the Territorial Unit of DREETS) an application package;
- inform the French Immigration Office (the Ofii) of the entry in France of an immigrant and pay the Ofii a fee. As of January 1st 2023, management and collection of the tax on the hiring of foreign employees, due on first admission to France, will be transferred from Ofii to the DGFiP.
An employer must ensure the validity of the work permit of the foreign employee he wants to hire (the work permit must be authenticated), by submitting a declaration of employment (by email or by post) to the Prefecture of the place of employment, at least 2 working days before the hire. Nationals of most countries of the European Union have the right to work freely in France, without a specific work permit. The only document required for their job is an identity card or passport to prove their nationality.
A new immigration law of January 26, 2024, allows greater flexibility for the hiring of non-EU employees in sectors of activity facing work shortages and for inter-group transfers but also higher sanctions in case of non-compliance with immigration rules.
Thus, the law institutes a temporary regularization scheme for illegal foreign workers employed in jobs in short supply, which will run until December 31, 2026. A new administrative fine has been introduced to replace the special contribution and flat-rate contribution levied by the Office Français de l’Immigration et de l’Iintégration (OFII). The fine will be no more than 5,000 times the hourly rate of the guaranteed minimum (i.e. a maximum of €20,750 in 2024) per foreign worker concerned. At the same time, the criminal fine for employing a foreigner without a work permit has been raised from €15,000 to €30,000 per foreign worker concerned, and its scope has been extended to cover the employment of a foreigner in a professional category, occupation, or geographical area other than those mentioned on his or her work permit.
Lastly, the law provides for a number of measures to help companies provide French-language training for foreign workers, whose mother tongue is a foreign language.
Does a Foreign Employer need to Establish or Work through a Local Entity to Hire an Employee?
It is not necessary to establish a local French entity in order to hire an employee. However, the foreign entity and the employee will have to be registered with the French social security office of Strasbourg, which is uniquely competent for foreign companies employing staff in France.
Limitations on Background Checks
Background checks in France are limited to the strictly necessary verifications of a candidate’s qualifications, experiences, and references. Criminal background checks are limited to certain professions that entail security responsibilities or that involve working with children or sensitive information or materials. Credit background checks do not exist in France.
Restrictions on Application/Interview Questions
The employer can only collect information about candidates, which facilitates the assessment of their professional skills with regard to the position that is offered. These professional skills must be directly required for the position. This right to collect information should be balanced with the respect of the candidate’s privacy.
Employers should run candidate selection tools (i.e. “recruitment methods or techniques of job applicants”) before the Works Council, for information.
Finally, all information collected on the professional background of a candidate from former colleagues, employees, clients, suppliers, etc. is legal as long as it is not unbeknownst to the candidate.
a. Tools used to conduct background checks
Employers may make use of all information from the Internet, irrespective of whether it was posted on social or work-oriented networks. In France, the private employer is generally prohibited from reviewing any previous convictions, as well as the candidate’s financial position.
If applicable, the employer can – only by setting forth a legitimate interest – ask for extract n°3 of the criminal record, which lists the heaviest penalties and can only be applied for by the candidate himself, safe exceptions in the fields of banking and healthcare.
b. Interviews with potential candidates
The employer has the right to ask questions pertaining to the candidate’s professional background (previous positions, former employer, grounds for previous termination, if he is held by a non-compete clause, etc.) and to request for the production of documents such as work certificates (but not pay slips), diplomas, driver’s license (if appropriate), etc.
There is an obligation to check that the employee holds a specific license enabling when required (i.e. administrative agreement or professional card). However, the employer may not ask questions pertaining to a candidate’s private life, such as sexual orientation, religion, trade union activities, health issues, financial issues, etc. Social security enquiries about the applicant are generally prohibited, except if the applicant is not yet registered.
The candidate should answer in good faith to the questions having a direct and necessary link with the employment at stake.
When the employer discovers an employee has lied on his background, the employer will be able to dismiss the employee only if he demonstrates that the employee did not have the required competences for the job or that the diploma was essential to perform his duties.
c. Pre-employment skill testing
Pre-employment testing constitutes a pertinent method to assess the professional qualification of the candidate and his ability to perform the proposed duties. However, it is important that the candidate is not tested in real conditions of employment, as this would be considered as a trial period and thus an employment relationship. Moreover, drug and alcohol screening of employees is allowed pursuant to the employer’s disciplinary powers, but only under certain conditions (in particular, the screening must be provided by the internal rules of the company).
d. Collecting and storing data
The employer may store the data collected on the candidates only the time necessary for the hiring process, in accordance with the principle of minimization and subject to the collection personal data for specific, explicit and legitimate purposes. However, the recruiter must define in advance how long the information collected will be kept. This period must be coherent and justified according to the purpose of data processing.
The French data protection watchdog, the CNIL, recommends that the storage of candidate or employee data is possible after prior clarification regarding the affected candidate or employee, who can request at any time that the data be erased.
Employers additionally have the option of setting up biometric ID systems on their employees, based on the accountability scheme, meaning that the implementation of such a system should comply with the GDPR, after prior consultation of the Works council and individual information of affected employees.
Under the EU AI Act of July 12, 2024, which will be effective from August 2, 2026, artificial intelligence systems intended for use in the recruitment or selection of people, in particular for publishing targeted job offers, analyzing and filtering applications and evaluating candidates, are regulated as high-risk AI systems, and as such are subject to ex-ante and ex-post standards as well as transparency obligations.
e. Legal Sanctions
If the employer violates the above-referenced legal provisions or employee rights, the employee can claim damages or sanctions under criminal law.
An employer could face up to three years of imprisonment and a fine of up to EUR 45,000 in the event of discrimination with regard to an employee’s membership of a trade union.
