The Labor & Employment Department of the Soulier AARPI law firm assists its clients, primarily businesses, in all aspects of French labor, employment and social security law.
French labor & employment law is often viewed as a disincentive to business expansion, notably because it is constantly evolving and imposes heavy burdens on companies.
Our commitment is to make this complex legislation more accessible and understandable to our clients, through a pragmatic and operational approach and a constant focus on creative legal engineering, while ensuring legal certainty at all times.
We guarantee to our clients responsiveness and efficiency in managing unexpected and urgent labor-related issues that may arise in connection with their operations, as well as a constant effort of anticipation, search for and optimization of legal tailored solutions, by providing a close attention to their concerns and taking into account the specific economic constraints that they face.
In this context, our expertise covers the following areas:
We assist companies and corporate officers in connection with the legal management of their human resources and intervene at all stages throughout the life of the employment contract, i.e. conclusion, performance and termination. As such, we provide the following services:
- negotiation and drafting of employment contracts, including with respect to specific and technical clauses, e.g. variable remuneration, restrictive covenants and non-competition, intellectual property rights, golden parachutes, so-called forfait jours working time arrangements (i.e. arrangements according to which working time is not counted in hours but is based on a fixed number of working days per year) and forfait rémunération working time arrangements (i.e. arrangement under which the employer pays to its employee a lump-sum remuneration that includes a certain and limited number of overtime hours in excess of the legal working time duration, up to a certain threshold), etc.;
- follow up of employment contracts, including, but not limited to, disciplinary procedures, teleworking, employee mobility/expatriation, prevention of discrimination practices and unequal treatment at work, intra-group labor relationships, transfers of employees, etc.;
- assistance with and follow up of termination of employees, including in case of contractually negotiated termination, dismissal on economic or personal grounds, acknowledgment of termination or resignation, retirement and forced retirements; we also provide strategic assistance with respect to “complex” and “sensitive” termination, such as termination of managing executives and corporate officers, etc.
When the termination gives rise to a dispute, we conduct pre-litigation negotiations to work out an out-of-court settlement agreement to avoid litigation before the Labor Court.
In addition, we assist our clients in analyzing and approving – from a labor law perspective – services agreements with vendors and sub-contractors and provide advice to eliminate risks associated with the illegal supply of employees, concealed employment and illegal subcontracting of labor.
We also handle all issues related to the status of executives and corporate officers (combination of an employment contract and a corporate mandate, specific employee category called “managing executives”, etc.).
Our Labor & Employment Department assists our clients on all issues arising from their relationship with staff representative bodies and trade unions (including in relation to the so-called délit d’entrave, i.e. a criminal offense that consists in any action to intentionally obstruct the establishment, election and functioning of the staff representative bodies and trade unions).
We provide legal assistance in the framework of professional elections, the proper functioning of the various staff representative bodies (e.g. communications to be made to the trade unions, meetings, appointments of representatives, operating budget and budgets allocated to social and cultural activities, etc.).
We advise our clients in collective negotiations on a large variety of subject-matters, e.g. mandatory annual negotiations, working time organization, including so-called forfait jours working time arrangements (i.e. arrangements according to which working time is not counted in hours but is based on a fixed number of working days per year), prevention of stress at work, agreements on gender equality in the workplace, action plans for senior employees, mandatory and optional profit-sharing plans, agreements on time savings accounts, so called increased dividend related bonus, generation contracts, occupational training, etc.).
We also help our clients deal with the Labor Inspection Authorities (assistance in case of unannounced inspections at the workplace, drafting of letters in response to the Authorities’ comments, etc.).
French rules governing collective dismissals on economic grounds are becoming increasingly complex and burdens imposed on businesses have increased drastically, in particular since the adoption of the Law of June 14, 2013 on Securing Employment.
Our Labor & Employment lawyers put their professional expertise and pedagogical skills at the service of our clients who wish to implement small-scale or large-scale collective dismissals. Our assistance in this area covers notably the preparation of the legally required economic reports, the presentation and negotiation of such reports with the staff representative bodies, the design, preparation, negotiation and follow-up of so-called Plans de Sauvegarde de l’Emploi (i.e. collective lay-off plans) and voluntary separation plans. In this respect, we are often asked to assess the costs and risks associated with contemplated dismissals.
We regularly provide legal advice on issues related to changes in and/or transfers of employment contracts, outsourcing of employees, sales or acquisitions of assets, including in the framework of insolvency/bankruptcy proceedings.
Our Labor & Employment Department regularly assists companies of all sizes operating in a wide range of industries in connection with:
- Compliance audits: we define the scope of the audit and the terms and conditions thereof, make a detailed assessment of the existing situation and draw up a report that will serve as a useful working tool for the company and its corporate officers. Designed as a pragmatic guide, this report summarizes and quantifies the labor- and employment-related risks, and provides practical solutions or recommendations that help the company minimize its exposure.
- Due Diligence and Vendor Due Diligence: labor- and employment-related risks are so important in merger, acquisition, sale and divestiture transactions that the completion of a labor and employment due diligence process has now become indispensable, whatever the size of the relevant company(ies). In this context, every single identified risk is carefully assessed and quantified by our Labor & Employment Department in order to secure the terms and conditions of the representations and warranties and, as the case may be, adjust the purchase/sale price. Such a DD process also provides the unique opportunity to anticipate on the future organization of the relevant company(ies), to manage at an earlier stage all issues related to the change of control and to the integration of the business/assets into an existing group, to collect the information necessary for harmonizing the various applicable and potentially conflicting collective agreements, to foresee any difficulty concerning the status of top executives and corporate officers, etc.
As soon as a company hires its first employee, it has to comply with strict obligations with respect to health and safety, including but not limited to, in its relationships with the occupational physician, in relation to procedures for unfitness for work, information to be provided to the employees and the posting of such information in the workplace, the use of company’s tools and equipment, etc.
If these issues are not duly anticipated and properly handled, the company and its corporate officers can be held civilly and – most importantly – criminally liable, especially in case of occupational accident or occupational disease where it can be established that the company has committed an inexcusable fault. In respect of safety at work, companies have a so-called obligation de résultat and not only an obligation de moyens. With an obligation de résultat, a party must fulfill a specific obligation or arrive at a specific result. With an obligation de moyens, the party must simply implement or use, to his/her best efforts, all necessary means in order to fulfill a specific obligation or achieve a specific result. In other words, concerning safety at work, the employer will be presumed liable from the sole fact that a professional risk occurred and caused harm to his employees.
In addition, the Health, Safety and Working Conditions Committee, a social partner whose sphere of competence was originally limited, has gradually become a key player and is now mandatorily involved in many stages of the daily life of businesses.
In this context, our team of Labor & Employment lawyers works closely with our clients to anticipate health- and safety-related risks and to deal with the obligations imposed on them in this respect. They notably assist them in their relationship with the staff representative bodies, in the preparation of the so-called document unique d’évaluation des risques professionnels (i.e. an occupational risk assessment sheet that must record the risks related to the activities of the company), in the assessment of a specific employment practice or labor-related risk, etc.
Our Labor & Employment Department has developed an in-depth expertise on all aspects related to psychosocial risks (harassment, discrimination, stress) and counsels our clients on the best way to prevent such risks as well as on the issue of hardness at work.
As part of this risk prevention approach, and in order to ensure a balanced allocation of responsibilities and liabilities, we also help our clients structure and implement the most appropriate chain of delegation of authority within the company and/or corporate group.
The remuneration policy of a company is subject to a number of constraints derived from labor and employment law but also from tax and social-security rules applicable to the various benefits granted to employees.
As such, our Labor & Employment Department works in close collaboration with our tax lawyers to assist companies in designing and implementing their remuneration policy, including, but not limited to, in connection with variable remuneration schemes, mandatory and optional profit-sharing plans, employee stock ownership plans and employee saving plans, with the aim of optimizing payroll and eliminating risks with regards to the employees and French labor and social security authorities.
In the field of welfare and social protection, employees’ expectations are rising and legal and regulatory requirements and obligations are increasingly difficult to manage. As such, companies must be proactive and anticipate the related risks.
When they provide legal advice and assistance and/or conduct a targeted spot audit, our Labor & Employment lawyers strive to develop innovative solutions to reduce the risks of adjustment by the URSSAF (Unions de Recouvrement des Cotisations de Sécurité Sociale et d’Allocations Familiales, i.e. the body responsible for collecting social related contributions). Specifically, they assist companies during URSSAF’s investigations and audits, and if URSSAF orders an upwards adjustment of the sums paid by company, they can challenge the decision and defend the interests of our clients before the Arbitration Committee of the URSSAF, the Social Security Tribunal and the Court of Appeals.
We also advise businesses in connection with the negotiation, implementation and modification of company-sponsored supplemental retirement schemes (e.g. so-called Article 82, Article 83 schemes that are governed by Articles 82 and 83 of the French tax Code, etc.) and death and disability insurance schemes (invalidity, disability, death, medical expenses, elderly care).
Our French and – primarily – foreign clients increasingly seek advice on labor law, social protection law and immigration law in the framework of the mobility of their employees.
In this respect, our Labor & Employment Department offers the following services:
- determination of the law applicable to the employment contract;
- determination of the status of the transferred employee (employee on secondment or expatriate employee) depending on our client’s requirements and applicable social security legislations;
- preparation of a check list summarizing all administrative formalities to be complied with for the effective implementation of the mobility policy (e.g. residence card and work permit, registration with the various administrative authorities of the host country);
- if applicable, design and implementation of an “expatriation package” guaranteeing the same level of social society cover as in France;
- analysis of the transferred employee’s social and tax situation, taking into account the requirements of our client (host company and/or lending company);
- advice on the possible elements of remuneration that may be granted to the employee during the transfer/secondment/expatriation period (e.g. expatriation allowance);
- preparation of a customized assignment contract and/or amendment to the employment contract.
Through our membership in various international professional associations and networks, we have established reliable connections in most countries around the world. As such, we are best-positioned to assist our clients in the choice of a local lawyer and to manage and coordinate the entire international mobility process.
To meet a growing demand, in particular from our Anglo-American clients, we have built up over a number of years a strong expertise in data privacy in the field of labor and employment law.
Our Labor & Employment Department regularly assists businesses in connection with the preparation and implementation of Internet & IT charters, code of conducts and whistleblowing programs.
Our lawyers also provide advice on to what extend companies can implement tools to control and monitor the activities of their employees (video surveillance, geolocation systems, trackers, control and monitoring software programs, etc.).
In addition, the employer’s right to access the data (in particular e-mails and files) stored by its employees on their professional equipment (PC, laptop, phone, USB device, etc.) is a sensitive issue that becomes even more acute when the company has to gather evidence for a potential dispute with an employee or former employee, for instance in the framework of unfair competition practices.
In order to provide our clients with the assistance they need in the most timely and efficient way including, but not limited to, in connection with their obligations concerning the required declarations of conformity or requests for authorization in case of processing and/or transfer of personal data concerning their employees, we have established and maintain regular contacts with several members of Commission Nationale de l’Informatique et des Libertés, i.e. the French Data Protection Authority.
Our Labor & Employment Department defends the interests of our clients before all French labor, civil and administrative courts, including:
- the Labor Courts, in relation to individual employment disputes;
- the Administrative Courts, in relation to disputes concerning the validity of collective dismissal procedures on economic grounds (validity of the collective lay-off plan);
- the Courts of First Instances, in relation to disputes concerning professional elections or the appointment of trade union representatives;
- the Superior Courts of First Instances in relation to some collective disputes (in particular small-scaled collective dismissals);
- the Social Security Tribunals in relation to social security related disputed (URSSAF, challenge of the finding of an inexcusable fault on the part of the employer, etc.);
- the Labor Chamber of Courts of Appeals.