Employment of foreign workers: obligations and risk of sanctions

Recruiting foreign employees is often necessary when the skills required are not available locally. However, when recruiting or using the services of a third-country national, certain obligations must be met. Otherwise, companies are liable to administrative and criminal penalties.
In this article, ITAMA explains everything you need to know to stay compliant!

Obligations to be met

For recruitment purposes

According to article L8251-1 of the French Labour Law: “No one may, directly or indirectly, recruit, retain in his service or employ for any period whatsoever a foreigner who does not hold a permit authorising him to work as an employee in France”.

As an employer recruiting a foreign employee, you must:

• Make sure that the residence permit presented by the applicant allows them to work.
• Contact the prefecture to check the authenticity of the residence permit. If the prefecture does not respond within 2 working days, it is considered that the verification have been carried out.

For secondment purposes

According to article L8251-2 of the French Labour Code: “No one may, directly or indirectly, knowingly use the services of an employer of a foreigner who is not authorised to work”.

The concept of secondment covers several situations. The company’s obligations in France and the penalties applicable in the event of noncompliance may differ depending on the situation :

• The host company in the case of an intra-group secondment. For example: the Indian subsidiary of a company sends an engineer to work for six months in the French subsidiary. It is the French company, as the host company, which must ensure that the secondment complies with the rules.
• The user company in the case of secondment by a foreign temporary employment agency. For example: a French logistics company calls on a Spanish temporary employment agency to assign handlers. The French company becomes the user company and must check that the seconded workers are in compliance with the law.
• To the orderer in the case of a foreign service. For example: a French factory calls on its Italian supplier to repair a machine. The French factory is considered to be the orderer. It must therefore ensure that the technician sent by its service provider to Italy is in compliance with the law.
  As an orderer who uses the services of an employee seconded by a foreign employer, you also have a duty of care. This responsibility involves ensuring that the foreign employer has duly declared the secondment and appointed a representative in France. To do this, you need to request proof that the declaration has been filed on the SIPSI website before the assignment begins. In addition, the orderer is jointly and severally liable for payment of administrative fines imposed on the employer of a foreign worker who is not authorised to work.

Penalties for non-compliance

General penalties

• Administrative penalties

The Immigration Act of 26 January 2024 introduced an administrative fine for employers in the event of “illegal employment” within their company. What’s new is that this penalty now applies equally to the employer, the host company, the user company and the orderer.

The amount of this fine can be up to 5,000 times the hourly rate of the guaranteed minimum per employee concerned. If the offence is repeated within 5 years, the fine may be increased to 15,000 times the same rate.

• Criminal penalties

If an employer hires, directly or through an intermediary, a foreign national who does not hold a document authorising them to work in France, they are also liable to the following penalties:

• A fine of up to €30,000 and €200,000 in the case of an offence committed by an organised gang.
• A prison sentence of up to 5 years, or 10 years in the case of organised crime.

Penalties specific to secondment

Where the duty of care has not been complied with by the orderer, the following penalties apply:

• A fine of up to €4,000 per employee concerned by the offence. The fine may be doubled in the event of a repeat offence within two years, up to a maximum of €500,000.
• Suspension of the provision of international services for a maximum period of one month.

Repercussions following a conviction

From 1st September 2024, companies convicted of “illegal employment” (among other offences) risk having their applications for work permits blocked.

This can lead to:

• The impossibility of recruiting new foreign employees.
• Obstacles to secondment projects.

Conclusion

You need to be vigilant when recruiting or using foreign employees. By complying with your obligations, you can protect your company from financial and criminal penalties, while ensuring that your international talent is properly managed. Do you need help with your procedures? ITAMA can guide you every step of the way to secure your recruitment and secondment projects!