The fight against illegal employment, for which Labour Minister Olivier Dussopt has announced a major plan for the period 2023 to 2027, has served as a reminder that companies’ obligations to be vigilant have been particularly heightened.
While it seems only natural that a company should have an obligation to ensure that its employees’ working conditions are legal, the provisions of article L.8251-2 of the Labour Code stipulate that this obligation extends to the services provided by other employers that a company may use: “ No one may, directly or indirectly, knowingly use the services of an employer of an illegal foreign national”.
The company entrusted with an assignment and which hires a service provider or subcontractor is obliged to check that the latter are in compliance with the rules with their own employees. However, to understand the scope of these provisions, it is important to understand their terms, since they mention the adverb ‘knowingly’ as a condition for committing the offence in question.
In his report of 16 September 2010 on the bill on immigration, integration and nationality, the deputy rapporteur Thierry Mariani stated: ‘ In order to make the scope of the offence of employing a foreigner without a permit more consistent, the Government has chosen to take the opportunity of transposing the directive of 18 June 2009 to supplement and clarify current domestic law. The new article L. 8251-2 to be inserted into the Labour Code (I) will make it possible to charge the offence of employing an illegal foreign national to natural or legal persons who knowingly use the services of an employer of an illegal foreign national, whether directly or indirectly – this is an important clarification as it excludes bona fide employers from the scope of the provision. This will make large companies more accountable for the behaviour of their subcontractors in this area ‘.
To read the rest of the article, click on : « Quelles conséquences pour l’entreprise dont le prestataire emploie des étrangers non-munis d’un titre de travail ? »