EMPLOYMENT LAW

- identifying an employment contract

- distinguishing an employee from an independent contractor
- applying the rules to different situations

What is the main distinction between an employment contract and an independent contract?

EMPLOYEE INDEPENDENT CONTRACTOR

- maximum daily working hours - no max daily working hours

- maximum weekly working hours - no max weekly working hours
- minimal wage - no min wages
- paid holidays - no paid holidays
- financial compensation in case of - compensation at the end of the contract
dismissal only if the contract so provides
- unemployment compensation - no unemployment compensation

How to identify an employment contract?

4 elements need to be identified:

- agreement
- task
- financial consideration
- relationship of subordination

EMPLOYMENT CONTRACT: an agreement whereby a person undertakes to provide his work services to
another within a subordinate relationship in consideration of remuneration.

Definition of the employment contract

 Agreement
 Task
 Financial consideration
 Relationship of subordination

What is the relationship of subordination?

3 aspects:
- MANAGEMENT:
one party has the power to direct or manage the tasks of the other.

- DISCIPLINE:
that same party has the authority and power to discipline the other.

- SANCTION:
that same party has the power to sanction the other.
 HOW TO IDENTIFY A RELATIONSHIP OF SUBORDINATION

 List of tasks to perform (attend practices and games)

 Determined working hours or schedule (practice time and game time determined by
the club)
 Determined holiday periods (financial compensation instead of holidays)

The employee has a relationship of subordination whereas the independent contractor doesn’t
have a relationship of subordination.

No relationship of subordination means no employment contract.

What matters are not the provisions of the contract but the reality of the situation.

If the independent contractor is in fact in a relationship of subordination, there is a risk of

requalification.

What is requalification?

The judge or the admission will requalify the contract of an independent contractor into an
employment contract.

Situations where there is a risk of requalification:

 Volunteers working for a club ore a foundation
 Independent contractors
 Franchise contracts

WHATEVER THE CONTRACT SAYS IF THERE IS A RELATIONSHIP OF SUBORDINATION THEN THERE IS AN

EMPLOYMENT CONTRACT.

IDENTIFY AN EMPLOYMENT CONTRACT

 If the independent contractor takes a holiday, he will get paid?

o Yes
o No

 If your friend is helping you setting up your company as a volunteer under your instructions
how is he considered?
o Volunteer
o Employee
o Independent contractor

 DEPENDS ON THE CONTEXT:

 STRICT INSTRUCTIONS
 SCHEDULE
  RISK OF SANCTION
 THEN HE CAN BE CONSIDERED AS AN EMPLOYEE

 What matters to identify an employment contract is

o What the contract says
o The reality of the relationship

 If the contract is requalified the employer will have to pay for holidays and overtime
o Yes
o No

 what is the form of an employment contract?



IMPORTANT INFORMATION IN AN EMPLOYMENT CONTRACT

Case study- 3

The contract does not have to be signed by both parties

The simple fact that the employee starts working is a proof of employment contract. It is difficult to prove
the content of the contract if it is not written (hours of work…)
The employee should be paid at least the minimal wage.

A promise of contract is the same than an employment contract (does not work for an internship, then it
is not considered as an internship contract but as a work contract).
 Employment contract does not have to be signed to be valid
OBLIGATION FOR THE EMPLOYER
Have to give information on the essential aspects of the employment relationship:

 Do the tasks and responsibilities should be mentioned in the contract?

o Yes
o No

 Do all contracts will include a probation period?

o Yes
o No

 What is the notice period?

When the employee decides to leave the job/company
The notice period is the time the employee has to wait before he/she can leave (most of the time 4
weeks) after resignation or dismiss

 Who has to pay for the uniform?

o The employer (obligation of the employer to provide the uniform if it is linked to
safety)
o The employee
o It depends
Contract- what information needs to be communicated to the employee:

Identity of the parties: (title, grade, nature or category of work or brief job specification)
- Your full name spelt correctly
- Date of hire
- Job title
- Where you will be based

Do not signed what you don’t understand

Clear list of task and responsibilities
if you are the employer and you think that the job and the responsibilities from the employee will change
or evolve you have to mention it in the contract.

Probation period
Most job have a probation period before you become a permanent employee, not in all contracts
Could be good for the employer to “test” the employee before you hire him/her

Notice period- time employee has to wait before he/she can leave
Given throughout the probation period
4 weeks
Basic pay:(Day of payment, method of payment)
Overtime should be mentioned at the beginning

How to inform the employee?

- Have all the information in the contract is the best option because the employee will sign it and it
is the proof that he knows the information
- Letter
- Other written document (email and text message included) difficulty is to prove that the
document was not change or altered

When to inform the employee?

No more than 2 months after the beginning of the contract

What happens if the information is not communicated?

Contract is still valid
But difficult to prove the correct information

DIFFERENT TYPES OF EMPLOYMENT CONTRACTS

Two diff types:

CDD - FIXED TERM EMPLOYMENT CONTRACT
CDI - PERMANENT EMPLOYMENT CONTRACT

Fixed term contract ends on a specific date

Permanent contract does not contain a fixed term / does not end on a specific date

Why is it important to distinguish between both types of contracts?

CDI
- employee can leave at any time after the notice period
- employee can be dismissed after notice period
 - employer has to pay a financial compensation

CDD
- only in specific situation
- no resignation during the contract
- no dismissal during the contract
- length of the contract is limited
- it has to be written

SPECIFICS OF THE CDD

CDD must be written within 48 hours

≠
CDI does not have to be written
If your contract is not written within 48 hours, it becomes automatically a permanent contract.

Formal aspect of the fixed term contract (CDD)

Must be written and issued within 48 hours
Compulsory information:
- title of the function
- reasons for the CDD (which situation will justify the fixed term contract?
o replace an absent or suspended employee
o temporary increase in a company’s business or workload
o for seasonal work
o where it is a standard practice not to use a permanent contract (teaching, entertainment,
sports…)

o urgent task to perform

o when waiting of the recruitment of a permanent employee
o to work in a foreign country for a specific period
o exceptional workload
 if you are not using one of this reason for a CDD then it is illegal, you have to use a specific
situation to use the fixed term contract.

- end date
- duration
how long?
o No more than 18 months
o Including 1 renewal
Exceptions:
Where CDD is common practice (no limit)
Sports (1 to 5 years)
Urgent task to perform (9 months)
Waiting for recruitment of permanent staff (9 months)
To work in a foreign country (22 months)
Exceptional workload (from 6 to 22 months)

- renewal clauses
- remuneration
What happens if the rules relating to fixed term contract are not respected?
 Requalification of the contract into permanent contract + penalties to pay

When can the employer terminate the CDD?

- Article 3- trial period

- Article 4- illegal substance use
- Article 2- at the end of the contract
No possibility to dismiss the employee

There are exceptions when a CDD can be terminated before the end

- Trial period: during that period both parties can terminate the contract without penalties
- Misconduct: if the employee is guilty of misconduct or if the employer refuses to pay the
employee
- Employee leaves because he is offered a permanent contract somewhere else: he can leave at
any time (employee will use it to negotiate with the company they are working in, he needs to
prove the offer of CDI)
- Mutual agreement: if both parties agree to terminate the contract
- Employee is unable to perform his employment (accident): career ending injury

- Must be written
- Can only be used in specific situations (including sports)
- Can’t be terminated before the end (exceptions)

Termination of a CDD: get automatically a financial compensation

How much is the financial compensation?
10% of the gross salary perceived by the employee (indemnisation de précarité)

Contract performed until the end but no compensation:

- If the CDD is renewed
- If the employer offers a permanent contract and the employee refuses
- Where the CDD is a normal practice (sport, entertainment)
Contracted terminated before the end with a compensation.
- The employer ends the contract without any good reason he will have to pay the salary due
under the contract to the employee fired.
 THE OBLIGATIONS OF THE PARTIES UNDER CONTRACT

Once the contract is valid the employer and the employee have specific obligations.

EMPLOYER’S MAIN OBLIGATIONS

- To supply work and pay salary

- Safety obligation: duty of the employer to make sure the employee is working in a safe
environment. (provide anything necessary for the security like equipment)
If the employee is not wearing the security equipment and has an accident, then it is not the
responsibility of the employer and it is an infraction to the contract because it is an obligation.
Safe work environment also includes protection from harassment by other employees.
- Respect of private life and privacy.
- Prohibition of discrimination.

If these obligations are not respected:

- Emergency procedure at the tribunal: in some circumstances (not safe environment) then they
can decide a right to refuse to work but the employee has to prove that he is not working in a
safe environment.

Difficulties:
- Can the employer limit what the employee does in his private life?
- Which criteria can be taken into account by the employer for recruitment, promotion, dismissal?

WHAT THE EMPLOYER HAS TO DO

He must provide information

- Regarding the recruitment methods and techniques used
- Relevant to evaluate the skills and abilities required for the job (experience, which studies, what
is necessary)

The employee and the employer are protected because they have both enough information for the
hiring (refuse if you don’t have enough experience).
 WHAT THE EMPLOYER CANNOT DO

Elements which cannot be taken into account by the employer during the entire process:
- Origin
- Gender
- Sexual identity or preference
- Age
- Marital status
- Pregnancy
- Ethnicity
- Race
- Political opinions
- Trade union
- Religious convictions
- State of health or disability
An applicant does not have the obligation to answer any of these questions.

Exceptions: in some jobs, the criteria listed on top are a criterion of hiring

As an applicant you have the right to say what you want if a question with one these personal aspects is
asked.
After hiring, if the employer finds out that the response was a lie, it cannot be used against you.

Exceptions:
- When one of the criteria constitutes a fundamental professional requirement
- Limitations must be proportional to the requirements – no general prohibition

RESPECT OF PRIVATE LIFE AND PRIVACY

- Employee cannot be sanctioned for what he does in his private life unless it creates trouble at
work
- Employees must be informed when there is a limit on their privacy (camera)

EMPLOYEE’S MAIN OBLIGATION

- Duty to take up employment

- F
- F

No respect of these main obligations:

Gives employer a ground for sanction potentially dismissal
A limit exists: right to refuse to do something illegal

- The employee has a duty to perform his part of the contract with good faith and fidelity
o Only if it is specified in the contract
o Even if the contract is silent about it

- What is the meaning of the duty of fidelity?

o The employee has the right to set up a company which would be a competitor of his
 employer
o It prohibits competition with the employer during and after the contract
o It prohibits competition with the employer only during the length of the contract

- To which period does the restrictive covenant apply?

o During the performance of the contract
o After the termination of the employment

- What is the purpose of restrictive covenants?

After the contract, no competition with previous employer

Duty of fidelity is during the contract and after the contract we have the restrictive covenant

- When is a restrictive covenant valid?

o If it is wide in scope
o Only if it is reasonably necessary
o Only if it protects an employer’s legitimate interest
o It must be reasonably necessary to protect an employer’s legitimate interest

Employee’s other obligation

- Duty of fidelity
- Employee does not have the right to work for a competitor
The risk is that they use the skills or information obtained elsewhere

DURING THE CONTRACT AFTER THE CONTRACT

DUTY OF FIDELITY RESTRICTIVE COVENANT – legitimate interest
- Cannot work for a competitor (something to protect)
- Cannot create a company - Financial compensation
- Limited in time
- Limited in space
- Prevents former employee from working
and earning a living
- Must be reasonably necessary to protect
employer’s legitimate interest

- Duty of loyalty
Employee is not free to say whatever he wants about his employer in public
- Duty of confidentiality
Cannot reveal information obtained at work (financial information)

WORKING TIME

WORKING TIME DIRECTIVE: EU law which applies in all member states, the member states have
flexibility but there is a minimum standard

- How long is the maximum working week?

 o An average of 60 hours a week over 17 weeks
o An average of 48 hours a week over 17 weeks
o An average of 48 hours a week over 1 month
- What themes are covered by the working time directive?
o Weekly rest

o Maximum daily working hours

o Maximum weekly working hours

- Is there an obligation to have a break after 5 hours of work?

o Yes
o No
it is every 6 hours

- What is the minimum awarded for weekly rest?

o 1 day/ week
o 1,5 day/week
o 1 day every other week

- What does opting out of the working time directive mean?

o This is when employers and representatives of employees decide to apply the
directive
o This is when a member State of the EU refuses to apply the directive
o This is when employers and representatives

- According to person speaking the working time directive makes businesses less
competitive
o Yes
o No

- An employee can decide by himself to opt out the directive

o Yes, it is a choice made by each employee
o No, it requires an agreement between employees and representatives of
employees
o maximum
 Fixed term contract (UK)

- If two employees hold the same position in a company, if one is under a permanent
contract while the other is under a fixed term contract should they get the same hourly
wage?
o Yes
o No
- What happens after 2 years of employment under fixed term contract?
o The employer can refuse to renew it without giving any reason
o The employer has to justify and give a good reason to refuse to renew it
- A fixed term contract can be used for a specific project and will end when the project is
completed?
o Yes
o No
- What is the situation if the employer fails to give a reason to refuse to renew a fixed term
contract after two years?
o It is considered as a dismissal
o It is not a difficulty

Under 2 years there is no justification to give to refuse to renew the contract but once it’s over 2
years the employer has to give a justification, a fair reason.

WHEN CAN THE FTC BE USED?

- Seasonal activity
- Specific project

If you stay after the end of the FTC it does not become directly a PC