Employment (France)

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On December 11, 2024 (Cass. soc., Dec. 11, 2024, No. 23-20.716), the French Supreme Court upheld the dismissal of an employee who had sent insulting messages about the company and its executives via a company-provided cell phone. This decision appears to contrast with a previous ruling from March 6, 2024 (Cass. soc., Mar. 6, 2024, No. 22-11.016), in which the dismissal of an employee who sent racist messages via the company’s email system was deemed unfair due to the private nature of the exchanges.

In this new case, the employee had used a company-provided cell phone to send text messages to current and former employees who were engaged in litigation with the company. These messages contained homophobic insults directed at company executives. The employee was dismissed for misconduct, a decision that he challenged by arguing that his messages were private and thus could not justify disciplinary action.Continue Reading Disciplinary dismissal for sending insulting messages via a company-provided cell phone: a shift in case law?

The French Supreme Court ruled on March 6, 2024 (n°22-11.016), that an employer cannot terminate an employee who has sent racist and xenophobic messages to a colleague via the professional email system,  if the messages were private.

Facts:

Due to an error made by one of the recipients of the emails, the employer became aware of the emails sent by the employee to his colleagues. The employee was dismissed for gross misconduct and challenged his dismissal by claiming that the employer has violated his private life as the emails were titled “personal and confidential”.

In return, the employer argued that, in accordance with the French Supreme Court’s rulings, a reason relating to an employee’s personal life can justify disciplinary dismissal if it constitutes a breach of an obligation arising from the employee’s employment contract.

Therefore, the employer claimed that the employee breached his employment contract’s obligations by sending racist and xenophobic emails via the professional email system.

The employer also argued that the employee abused the professional email system for personal purposes.Continue Reading No disciplinary action for sending private racist messages via the professional email system

In France, a health pass[1] must be presented in certain places or events where there is a high risk of COVID-19 being contracted (e.g. concert halls/cinemas, sports events, bars and restaurants, long-distance transport, shopping centres over 20,000 m², etc.) as listed by the Law no. 2021-1040 dated 5 August 2021.

Since 30 August 2021, employees working within these places are also required to present a health pass in order to continue their job role, unless this takes place in a space that is not accessible to the public or takes place outside of public opening hours.

If the employee does not have a health pass or refuses to present it, they will no longer be able to work. The employee may take rest days or paid leave in agreement with the employer. However, if an agreement is not met, the employer is required to suspend the employee’s employment contract without pay until the employee is able to present a health pass. The Law states that, after the third day of the suspension of the contract, the employer must conduct an interview with the employee during which they will discuss ways to rectify the situation. For example, this could include a temporary assignment to a position not subject to the above-mentioned obligations if the needs and organisation of the company allow it or teleworking if the employee is eligible. If they fail to come to an agreement, the Law states that “ordinary law procedures” concerning employment contracts may be applied. The text no longer states that the employee may be dismissed if they fail to present a health pass for an extended period.
Continue Reading Employees in France who fail to present a health pass risk having their employment contract suspended

Independent contractors have long been excluded from the protections afforded by traditional workplace anti-discrimination laws. That is no longer the case in New York State and City. In recent months, legislators in both Albany and Manhattan have extended substantial workplace-related protections – once only afforded to traditional employees – to freelancers, consultants, and the like (that is, independent contractors). We will discuss these measures below.

New York State

Effective October 2019, the antidiscrimination provisions of the New York State Human Rights Law (NYSHRL) now protect nonemployees, such as contractors, subcontractors, vendors, consultants, temporary workers, “gig” workers, and other non-employee persons providing services pursuant to a contract. In practice, this means that independent contractors may now pursue claims of workplace discrimination, harassment, and retaliation under the NYSHRL. This change is particularly impactful when considered in conjunction with the recently lowered standard for proving claims of harassment.

At present, these laws only apply to entities with four or more employees. However, effective February 8, 2020, the protections will cover all businesses operating within the state.
Continue Reading New York State and City expand Human Rights Law protections to freelancers and independent contractors

In two decisions both rendered on 17 July 2019, the French Supreme Court ruled that the Macron scale (a mechanism introduced on 24 September 2017 to provide for caps and floors on damages for unfair dismissal) complies with international conventions ratified by the French government. These decisions were rendered through a specific procedure (demande d’avis) in which the French Supreme Court does not judge a case but is invited to take a legal position on a specific issue in order to harmonize legal practice.

These decisions should have ended the dissension of several French industrial tribunals which had set aside the Macron scale, considering it to be in breach of article 10 of the Termination of Employment Convention of the International Labor Organization and article 24 of the European Social Charter, both of which provide for adequate protection and appropriate compensation in the event of unfair dismissal.
Continue Reading Macron scale of damages for unfair dismissal: the lower French industrial tribunals strike back

Welcome to Reed Smith’s Monthly Global Employment Law blog post. This month’s post covers the legality of employee strikes in five key jurisdictions: France, Germany, Hong Kong, the UK and the United States.

France

According to the French Supreme Court, a lawful strike action is defined as a collective cessation of work, the purpose of which is to support professional claims. In the private sector, the right to strike, as a constitutional right, cannot be restricted or regulated by a collective agreement or by the employer itself. There is thus no obligation to comply with a specific notice period prior to going on strike. Employees, however, must inform the employer of their claims at the time they decide to stop working and go on strike.

Employment contracts are suspended during the strike (i.e., the employees do not perform their duties and the employer does not pay them). Employees on strike are protected against any disciplinary sanctions, including dismissals in the sense that any sanctions that may be imposed where there is lawful strike action are deemed to be null and void. This protection does not apply when the strike is unlawful (i.e., the action does not support professional claims or where the employees on strike prevent non-strikers from working).

The majority of strike actions are usually settled without having to commence legal action before the courts.

Germany

In Germany, a strike is the typical industrial action on the part of the employees and trade unions. To be legal, a strike must meet certain formal requirements and pursue a legitimate purpose. Formally, a strike must be (i) organised by a trade union; and (ii) called following a strike vote conducted according to democratic principles. Therefore, a so-called “wildcat” strike, which is not organised by a trade union, is illegal. Any strike must pursue a legal purpose, which can only be to change working conditions. Furthermore, a strike must be conducted in a reasonable and lawful manner. Therefore, the union may not occupy the premises, call on customers of the employer to boycott the product, or prevent employees willing to work from entering the premises and working.

Continue Reading The legality of employee strike action

This post was also written by Claudia Röthlingshöfer.

Welcome to Reed Smith’s monthly global employment law blog post. This month’s post covers the protection afforded to whistleblowers around the world.

France

Under French law, employees cannot be sanctioned, dismissed or be subject to direct or indirect discriminatory measures (especially concerning salary, training, reclassification or appointment)…

Our Global Regulatory Enforcement colleague Daniel Kadar wrote a blog post discussing the French Supreme Court’s (‘Cour de cassation’) ruling over a case that should remind any international organization that the worldwide adoption of compliance guidelines and of a Code of Conduct is not in itself a sufficient protection against compliance breaches: everything…

De-industrialization is the hot theme of the presidential campaign, regardless of the political spectrum. Solutions brought forward by candidates are more or less concrete, more or less likely. They show little if any understanding of how globalization has made the world a village, through internet and its ability to give instant access to comparative data and decide to move business to welcoming countries.

But in the backyard of their courts, Appeal judges have silently elaborated what can be qualified as the dismissal visa. No more pay off of employees unfairly made redundant. Now the key question is to know whether the judges will authorize a French or foreign group to shut down a plant, downsize staff or disinvest or will merely tell them to keep their workers on the payroll.Continue Reading New challenges for global groups with French operations

U.S. employers with French operations must focus carefully on their investment or divestment operations. Through the ” joint employer theory ” employees of a French company can now pierce its corporate veil to hold the ultimate parent, even one based in the United States, liable for restructuring costs, including severance packages and damages for unfair…