FRANCE Law and Practice Contributed by: Laetitia Tombarello and Audrey Demourgues, Bredin Prat
they must follow the same rules to be valid, relating in particular to the financial compensation and the limita - tion in terms of time and space. In addition, case law limits the scope of clauses prohibiting former employees from soliciting current employees of the company: these non-solicits may only cover “active solicitation” by the former employ - ee. In other words, notwithstanding the non-solicit, employees of the company are still free to apply for a job with the former employee and be hired by them, providing that there was no prior “active solicitation” by the former employee. In addition, these non-solicits should in principle cover only the people employed by the company at the date of termination of the employ - ment contract of the former employee, and be appli - cable for no more than 24 months. 3. Data Privacy 3.1 Data Privacy Law and Employment In France, data privacy is notably regulated by the Data Protection Law of 1978 ( loi informatique et libertés ), amended in 2018, implementing the EU General Data Protection Regulation (GDPR) locally. In the context of employment relations, the protection of employees’ personal data must be ensured by all the company stakeholders processing employees’ personal data (human resources, accounting department, etc). The obligations to which the employers are subject notably include the following. • Personal data processing must be carried out law - fully, fairly and in a transparent manner. • In order to process employees’ personal data law - fully, the processing shall rely on a lawful basis. For instance, the processing can be necessary to fulfil a legal obligation or for the purposes of the legitimate interests pursued by the employer. Data processing may also be necessary for the perfor - mance of the employment contract. • The processing of employees’ personal data cannot pursue any other objective incompatible with the purpose for which the personal data was initially collected.
• The employees shall be informed about the pro - cessing. Furthermore, employees cannot be placed under permanent surveillance, and the implemen - tation of monitoring tools shall respect employees’ privacy. • Therefore, the works council and the data privacy officer (if appointed) must be informed and con - sulted prior to the implementation of any means of monitoring employee activity and/or tools for collecting their personal information. • The company cannot consult an employee’s con - versations on a personal messaging system, nor consult emails and folders labelled as “personal” on their professional computer unless the employ - ee is present or has been duly invited. In recent years, former employees have increasingly requested access to their entire professional email inbox, often to support their claims in legal proceed - ings related to the termination of their employment contracts. Such requests are expected to continue in the coming years, particularly in light of a recent decision by the French Supreme Court which held that emails sent or received by an employee through their professional email account constitute personal data under the GDPR. As a result, employers are required to provide employees with both the metadata (such as timestamps and recipients) and the content of these emails, unless disclosing certain information would infringe upon the rights and freedoms of others. Citizens of EU countries, the European Economic Area and Switzerland benefit from provisions relating to the free movement of workers in Europe. Non-EU citizens must have a valid permit authorising them to work in France. Valid permits include: • residence permits, which are valid for a period of ten years, are automatically renewable and allow their holder to work in mainland France without any professional limitations; and • temporary residence permits, which can be issued for precise, professional purposes and whose 4. Foreign Workers 4.1 Limitations on Foreign Workers
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