New Posted Workers Policy to Increase Fines for Violations and to Simplify Employer Processes

The situation

A new French law will increase the fines and penalties for violations of immigration rules related to posted workers and will relax certain rules relating to notifications for posted workers. 

A closer look

The most significant changes are:

• Increased fines.
  • Fines for violations of posted worker rules will double to EUR 4,000 per employee per violation, or EUR 8,000 for repeat offences.
  • In determining fines for repeat offences, the labor inspectorate will check companies’ compliance records over two years prior to the violation, up from one.
  • Employers will risk facing a bar from sponsoring short-term assignments for up to two months if they fail to pay fines for noncompliance, up from one month.
  • Local authorities will be able to suspend postings in case of non-payment of fines for noncompliance for up to two months.
  • Local authorities will be able to close client sites for violations of immigration rules related to posted workers for any industry where posted workers are used. Previously, this was only applicable to the construction sector.
  • Impact. Employers are advised to check the immigration status of posted workers on their worksites. Companies should consider how the increased penalties may affect their immigration compliance plans.

 

• Information exchange.
  • When the labor inspectorate is investigating potential violations of immigration rules related to posted workers, it will be authorized to directly request information from French government agencies instead of through the employer.
  • Additionally, employers and government agencies can no longer refuse to provide information for reasons of professional secrecy.
  • The labor inspectorate will also be able to share information with French authorities such as the tax and social security departments and can publish a list of offenders online.
  • Impact. The new law should increase the labor inspectorate’s capacity to conduct compliance checks and sanction offenders. This rule change may also result in more information requested directly from more agencies, where previously, the inspectorate could only directly question employers on limited information about employees.
     
• Pre-contract verification. When signing a contract in which posted workers will be involved, the party registered in France receiving posted workers must verify that the service provider paid all past administrative fines involving temporary workers.
  • Impact. It is not yet known how this obligation will be enforced in practice. Fragomen will provide an update once implementing decrees are published.
     
• Benefits of new decree
  • Employers will no longer have to maintain documents in French for certain short-term assignments. The list of assignments will be confirmed in a ministerial decree.
  • Employers will be able to request waivers for certain notification requirements for posted workers, such as the naming of a representative in France, if they can certify that posted workers are treated equally to local staff in terms of minimum salary and work hours, among other conditions. Each waiver that is requested will remain in place for a maximum of one year.

 

Background

These changes were announced in March, together with an immigration bill bundling immigration reforms on several topics including the EU Intracompany (ICT) Permit and the Talent Passport program. The new law also implements the updated Posted Worker Directive.

Looking ahead

The new law will take effect once implementing ministerial decrees are published. The government announced an implementation deadline between January and March 2019. Fragomen will issue an update when more information is available.

This alert is for informational purposes only. If you have any questions, please contact the global immigration professional with whom you work at Fragomen or send an email to [email protected].