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The new Whistleblower’s law / France’s presidency of the European Council / Employment topics to be discussed during the next French presidential elections / CNIL recruitment guidelines

Published on : 31/12/2021 31 December Dec 12 2021
Newsletter / Looking Foward

The new Whistleblower’s law

The new law on whistleblowers’ protection will no doubt be one of the main topics of early 2022. As well transposing into French law the 2019 European Directive, French Parliament has taken this opportunity to review the rules on whistleblowing generally.

The law, which is expected to be published in February 2022, will now allow employees to make whistleblowing reports directly to external authorities whereas they first had to raise them internally until now. HR grievances such as sexual and moral harassment as well as discrimination claims will fall within the scope of the whistleblowing law. This means that the heightened protection of whistleblowers will apply. For example, non-respect of the strict confidentiality rules can lead to up to 2 years’ imprisonment and a 30 000€ fine and any measures taken to obstruct a report can result in punitive damages and a 60 000€ fine. This is in addition of the invalidity of any retaliation actions which can also result in criminal penalties.

Companies should therefore ensure they have put in place a whistleblowing policy if they have not yet done so (mandatory for all companies with over 50 employees). For those who already have a system in place, they should see how their policy needs to be updated and also how to make their system more attractive to employees to avoid all concerns being raised systematically with external authorities. Finally, HR teams need to be trained on how to handle complaints in line with the new law.

France’s presidency of the European Council

On December 9th, President Macron announced that France’s program for its presidency of the European Council would concentrate on 3 themes: digital, the environment and employment. Of course, the European legislative calendar is already set but countries holding the presidency have often tried to accelerate or delay certain initiatives. 

It is therefore likely that the proposed Directives on minimum salaries and pay transparency will be pushed up the agenda. While the Directive on minimum wages is unlikely to impact French law, the Directive on Pay Transparency would require employers to provide candidates with information on initial pay level and will not be allowed to ask candidates about their pay history. Also, employees would have the right to request information from their employer on the average pay levels, broken down by gender, for categories of employees doing the same work or work of equal value. Employers with at least 250 employees would be obliged to publish detailed information on the pay gap between female and male employees in their organization which goes further than the already existing equality index under French law. In case of a gender pay gap of over 5%, the employer would have to carry out a pay assessment in cooperation with their works council. Fines and the right to class actions would also need to be transposed into French law. 

Employment topics to be discussed during the next French presidential elections

During each French presidential election, there is always a key employment topic. In 2007, it was Nicolas Sarkozy’s “work more to earn more”, in 2012, it was François Holland’s “generation contract” aimed at the young and seniors and in 2017, Emmanuel Macron’s program included the damages cap in employment litigation, the updating of the French Labour Code and the possibility for resigning employees to claim unemployment benefits. 

In 2022, we predict that the debate will center around purchasing power (reduction in social contributions, increase of the minimum wage etc.), working time (increase or decrease of the 35-hour week), the employment of seniors (retirement age, pension benefits, incentives to employ persons aged over 50, etc.) and the state unemployment fund as the current framework expires in November 2022.

CNIL recruitment guidelines

The CNIL, France’s data protection agency, is due to issue new guidelines on how companies should handle personal data within their recruitment process. It is expected that these guidelines will set new and heightened obligations on companies namely with regards how they document their data privacy policy and how they inform candidates of their rights. Given the high penalties linked to non-compliance with data privacy rules, companies should plan to review their policies and processes when this new guide is published.
 
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