The French act of 5 September 2018 referred to as the “Professional Future Act” strengthened measures against illegal employment. Its application is now effective following publication of a decree on 4 June 2019.

Extended right to discovery

Pursuant to Article L.8271-6-2 of the French Labour Code, inspectors who have authority to investigate illegal employment offences may ask to be given and immediately obtain a copy of the documents proving the employer’s compliance with its declaratory obligations.

Henceforth, this right to discovery also applies to digital data and media (Article L.8113-5-1 of the Labour Code) and has been extended to third parties (Article L.8113-5-2 of the Labour Code). It enables labour inspectors to exercise this right during their visits and enquiries. The request must be notified in writing to the natural or legal person targeted by the right to discovery.

The right to discovery may concern non-identified individuals, in which case, the request must include:
– the nature of the legal or economic relationship existing between the person to whom the request is sent and the individuals in respect of whom the request is made,
– criteria relating to the activity of the individuals in respect of whom the request is made, including at least one of the following three criteria: workplace, level of activity or level of income received (amount in Euro or number or frequency or duration of the activities carried out), method of payment or remuneration,
– the period, possibly split, without exceeding 18 months, to which the request relates.

Inspectors may ask for the information to be provided on a computer medium via a secure system. The information collected will be stored for three years after receipt (and up to the end of any legal and/or administrative proceedings before the competent authorities).

Temporary closure of the place of business following illegal employment

The Prefect of the department may demand the temporary closure of the place of business after being sent a report for illegal employment. Hitherto, the Prefect only had this possibility when the work was done on building sites. Now, the offending company is required to display the Prefect’s decision on closure.

New aspects concerning the construction industry

In the construction industry, in which illegal employment is particularly rife, employers must give their employees a professional identification card (except for certain professions such as architects, surveyors, drivers, etc.). This measure also applies to foreign companies seconding employees in France.

The new act extends this obligation to foreign companies employing staff in France covered by the French social security scheme, which are required to fulfil their obligations to file declarations and pay social security contributions to URSSAF.

In addition, the professional identification card includes a code that enables the customer or prime contractor to check with the union of state health insurance organisations that their partner (contractor, subcontractor, etc.) has made the appropriate declarations and that the card has been validly issued, while accessing the database of automated personal data processing.

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