In two opinions dated July 17, 2019, the French Supreme Court confirmed that the so-called “Macron Grid” implemented by the French employment law reforms in September 2017 is compatible with Article 10 of Convention no. 158 of the International Labor Organization (“ILO”).

Following diverging opinions and judgments from local French labor courts (e.g., Montpellier, Troyes, Lyon) on the validity of the Macron Grid, the French Supreme Court has received a request for its opinion from the Louviers and Toulouse labor courts to determine whether such Macron Grid is compatible with international laws.

The Macron Grid (codified under Article L. 1235-3 of the French Labor Code) establishes a scale that applies to the determination by French judges of the compensation granted for unfair dismissal. It sets a minimum and a maximum amount based on the employee’s seniority and average gross salary: the minimum amount is one month’s salary for one year of service (0.5 months for companies with less than 11 employees); the maximum is twenty months’ salary for employees who have at least 29 years of service. Note that this grid does not apply if employees claim that their dismissal results from discrimination or harassment and they hence request that their dismissal be declared null and void.

Certain labor courts have considered that the Macron Grid violates Article 10 of Convention no. 158 of the International Labor Organization (“ILO”) which provides that if judges rule that termination is unjustified, “they shall be empowered to order payment of adequate compensation or such

In order to fight against gender inequalities at work, French law no. 2018-771 adopted on 5 September 2018 introduces an obligation for employers to achieve the principle of equal remuneration between women and men (as opposed to a best efforts obligation). To do so, companies with 50+ employees will be required to calculate an “equal pay index”, based on gender equality indicators. They must then publish their results on their website and remedy inequalities in the event of insufficient results. They must also disclose the result to their personnel representatives and to the French labor authorities.

The gender equality indicators that must be taken into account are:

– the gender pay gap, calculated according to the average pay of women as compared to men, by age group and equivalent job category;

– the difference in the rate of individual salary increases between women and men;

– the percentage of employees who were granted an increase in the year following their return from maternity leave, if increases were granted during the period during which the leave was taken;

– the number of employees of the under-represented sex among the ten employees with the highest remuneration.

In addition, companies that have 250+ employees must take into account a fifth indicator: the gap in promotion rates between women and men.

Points will be granted for each indicator depending on the results achieved. The results are then aggregated in order to obtain an overall result ranging from 0 to 100 points. French Decree n°

In a judgment dated 28 November 2018, the French Supreme Court (Cour de Cassation) ruled for the first time on the characterization of the agreement between a delivery driver and a digital platform. The French Supreme Court granted the status of employee to a former delivery driver of Take Eat Easy.

The French Court of Appeal had rejected the employee status because, among other things, the driver remained free each week to determine the time slots during which he wished to work. The French Supreme Court considered, basing itself on objective elements, that the “geo-tracking system which enabled the company to monitor in real time the position of the driver and the number of kilometers covered by him” allowed the company to sanction the driver (via a bonus and malus system). It therefore ruled that the existence of a power of direction and control over how the driver provided his services created a relationship of subordination, and annulled the judgment of the French Court of Appeal.

For several years now, litigation related to digital platforms such as Uber has emerged both in France and abroad; the decisions rendered by the courts however differ.

In France, several Uber drivers filed proceedings to recharacterize their Uber agreement as an employment agreement. On 29 January 2018, the French Labor Court dismissed a former Uber driver’s request on the grounds that the driver was “entirely free to work according to the hours and days that suited him”, and that “this total freedom in the

French Parliament passed a bill last December 21, 2018 introducing urgent economic and social measures to improve employees’ purchasing power.

One measure concerns the payment of an exceptional bonus of up to 1,000 euros net, exempted from social contributions and income tax, to employees earning up to 3 times the yearly minimum wage. Another is an exemption from certain social contributions and from income tax for any overtime worked as from January 1, 2019.

The exceptional bonus measure concerns those employees that earn up to three times the minimum wage and is capped at 1,000 euros. The bonus must be paid between December 11 and March 31, 2019. Existing bonuses or those provided by employment agreements, company practices, collective or company labor agreements, and planned salary increases cannot benefit from the exemptions.

The amount of this bonus may only vary according to the level of remuneration, employee classification, effective presence during 2018 and working time. If an employer decides to grant a bonus to all of its employees, only those having earned up to € 53,945 in 2018 will benefit from the exemptions. As a reminder, social contributions amount to up to 25% for employees and 42% for employers. An employee without a spouse or children who earns up to three times the minimum wage, would pay up to 14% of income tax.

This bonus needs to be provided for by a company collective agreement or an agreement entered into with the personnel representatives. It may alternatively be unilaterally determined

Welcome to the third post in our ‘GDPR HR Issues’ blog series. Drawing on key insights from across Bryan Cave Leighton Paisner’s global Employment & Labor team, the series highlights key GDPR issues affecting employers.

This blog focuses on new obligations imposed by the GDPR to notify the relevant supervisory data protection authority (“DPA”) and those individuals whose data have been violated, when an employer becomes aware of a violation affecting personal data that it processes (a “data breach”).

If an employer discovers that the personal data it holds concerning its employees is, for example, accidentally accessed by a third party without authorization, what practical steps should it take to manage such a breach?

A personal data breach occurs when a breach of security affects the personal data’s confidentiality (unauthorized disclosure or access to the data), integrity (data is involuntarily or unlawfully modified or destroyed) or availability (loss of data). Data breaches can be accidental or deliberate.

• Take immediate action to mitigate the breach (for example restore access authorizations where there has been a security failure and take such other IT security measures as necessary);
• Set up a crisis team. This should include the Data Protection Officer (the “DPO”) if the company has one (or if not, a person responsible for data privacy in the organization) as well as people from HR, Legal, IT and any other
  

Welcome to the 2nd post in our ‘GDPR HR Issues’ blog series. Drawing on key insights from across Bryan Cave Leighton Paisner’s global Employment & Labor team, the series highlights key GDPR issues affecting employers.

With the General Data Protection Regulation (‘GDPR’) coming into effect today, employers with EU-based staff need to ensure that they properly comply with the new regime. Failure to do so can result in significant fines and disruption to your business.

This blog focuses on the changes made by GDPR to a fundamental data protection right – an employee’s right to find out what information their employer holds on them by making a data subject access request (‘DSAR’).

Following the combination of the Labor & Employment practices at Bryan Cave and BLP, Bryan Cave Leighton Paisner’s combined team now includes over 120 employment lawyers in offices across the US, UK, France, Germany and Russia, with excellent capabilities and a strong network in Asia. Committed to collaboration, and with our strengthened offering, experience and substantive knowledge advising clients on GDPR, we bring you our new ‘GDPR HR Issues’  blog series. Drawing on key insights from across our team, the series highlights the key GDPR issues affecting employers.

The General Data Protection Regulation (‘GDPR’) comes into force in less than two months. From an HR perspective it imposes data obligations on any US, European or other employer with EU-based staff. Failure to comply with the GDPR regime can result in significant fines and disruption to your business. Are you ready?

Our first blog deals with ‘privacy notices’ aimed at staff. GDPR requires employers to give information to their workforce, setting out in particular the personal data (employee information) the employer holds about them, how it is used, and with whom the information is shared.

No. GDPR imposes new requirements on employers. Employers must give more detailed information than is currently required under existing EU data protection laws. Employers also need to ensure that their privacy notices accurately reflect their workforce data processing activities.