April 14, 2024

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Be careful with foreign language documents given to employees!

Be careful with foreign language documents given to employees!

The Labor Code contains several provisions requiring that certain documents for job candidates, employees or representatives of employees must be written in French.

A new ruling issued by the court on October 11, 2023, considers documents written in English and sets out the objectives necessary to determine the unenforceability of differential pay, an opportunity to calculate the obligation to use French in labor relations and its consequences. A breach event.

1. Regarding job opportunities

Posting a job offer containing text written in a foreign language is prohibited.

If the job title requires a term in a foreign language, the offer must contain a sufficiently detailed description in French to avoid misleading potential employers (1).

Failure to comply with this regulation will result in a fine of 450 euros (2,250 euros for a legal entity).

2. Regarding documents creating obligations for employees

Collective agreements and contracts drawn up in French, clauses written in a foreign language are unenforceable against the employee under penalty of adverse effect on him (2).

The same applies to the employment contract and any amendments (3) which must be drawn up in French, if applicable, with a translation if the foreign employee so requests. Good practice is to have a bilingual version of these documents.

broad, Use of the French language is imposed Any document containing information necessary for the duties of the employee or the performance of his duties (4)

These general rules therefore cover all documents, whatever their nature, relating to the performance conditions of the employee's work.

Documents setting out the objectives for determining variable pay have generated a large body of case law. The use of the French language appears to be necessary for these documents to set such objectives, however:

The employee has a valid command of the foreign language used (5);

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The company's working language is English, e-mail exchanges created between the parties, mostly in English, including work documents established by the employee (6);

The company's operation is international (7).

It's different For documents received from abroad or for foreigners. In application of this rule, it was held that:

A statement of objectives written in English need not be written in French unless drawn up by a parent company resident abroad (8);

Intentions written in English and intended to fix differential wages are enforceable against an employee who is a US citizen (9).

Furthermore, case law has accepted the possibility of setting out the objectives in a foreign language if a translation is attached (10).

Failure to honor this obligation renders the objectives unenforceable against the employee (11) and he can ask a judge to determine whether the objectives have been met or not, based on the maximum rate of the variable portion of his wages.

Thus, in accordance with its standard case law, in its judgment of October 11, 2023, the Court of Cassation found:That :

Documents setting out the objectives necessary for determining the employee's variable remuneration, drawn up in English and not obtained from abroad;

The trial judges erred in dismissing his claim for differential back pay, considering that this circumstance would not be sufficient to enforce unenforceable wage schemes against the employee. (12)

Therefore, employers should ensure that they create documents in French that contain the duties for the employee or instructions necessary for the proper performance of their job. As an exception, only documents received from abroad or for foreigners may be written in a foreign language.

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According to this logic, if, in principle, the evaluation criteria of an employee, based on pain of impracticability, should be written in French, this does not apply to evaluation documents written in English and sent by a tax manager of English nationality. French staff from London (13).

Also, from a criminal point of view, not making available to an employee a French language version of a document containing the duties of this employee or the regulations required by the employee to carry out his work – punishable by the fines provided for violations of 4e class, or €3,750 per legal entity, for a specified offence.

3. Relating to documents establishing rules applicable to health, safety and discipline

The Labor Code expressly provides that “The internal controls are written in French. It may be accompanied by translations in one or more foreign languages» (14).

Consequently, even charters incorporating service notes or internal regulations must be written in French to be enforceable against employees. The labor inspectorate may, at any time, require the withdrawal or modification of provisions of internal regulations not written in French (15).

Additionally, pursuant to R.4141-2 of the Labor Code, the employer “To ensure that all workers understand the risks to their health and safety», some documents or instructions may need to be translated into French.

Here again, failure to comply with this duty is punishable by the penalty provided for class 4 infractions (16).

4. RegardingPapers reported in CSE

The Labor Code must have at least one version in French:Documents communicated to employees' representatives» European Works Council (17) and European Company Council (18). A fortiori, the same rules apply to documents communicated to the Social and Economic Committee (CSE).

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Therefore, in international groups, it is appropriate to expect the translation of documents originating from abroad and communicated to the CSE.

This good practice aims to facilitate exchanges and prevent disputes arising from insufficient information.

Indeed, a CSE who considers that he lacks sufficient information may refer the matter to the President of the Judicial Court, who may rule on the merits under an expedited procedure, so that he may order:

Employer communication of missing elements;

and, in the case of informed-consultation, additional time-limits when there are particular difficulties in accessing the information necessary to form its opinion (19).

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Ludovique Clavreul, Legal Adviser, CMS Francis Lefevre

Laure Guilmet, lawyer, CMS Francis Lefebvre

(1) Article L.5331-4 of the Labor Code
(2) Article L.2231-4 of the Labor Code
(3) Article L.1221-3 of the Labor Code
(4) Article L.1321-6 of the Labor Code
(5) Case. soc June 29, 2011 n°09-67.492; Cass. soc April 2, 2014 n°12-30.191
(6) Case. soc June 7, 2023 n°21-20.322
(7) Case. soc May 3, 2018 n°16-13.736
(8) Case. soc November 5, 2014 n°12-30.191; Cass. soc September 27, 2018 n°17-17.255
(9) Case. soc June 24, 2015 n°14-13.829
(10) Case. soc September 21, 2017 n°16-20.426
(11) Case. soc Jun 29, 2011 As mentioned above
(12) Case. soc October 11, 2023 n°22-13.770
(13) CA Paris November 25, 2020, n°18/02143
(14) Article L.1321-6 of the Labor Code
(15) Article L.1322-1 of the Labor Code
(16) Article R.1323-1 of the Labor Code
(17) Article L.2343-17 of the Labor Code
(18) Article L.2353-21 of the Labor Code
(19) Article L.2312-15 of the Labor Code