Improved protection for migrant workers, France
This measure aims to strengthen the financial sanctions used against employers who hire undocumented migrant workers by making the employer either pay the worker or, if they have left the country, pay a public body damages. It is also a way of increasing the social rights and improving the finances of migrant workers.
The law n° 2011-672 of the 16 June 2011 on immigration, integration and nationality, which came into force on 2 December 2011, has increased the rights of migrant workers who have been working illegally for employer(s). The law was finalised by a decree of 30 November 2001 and an order of 30 November 2011.
This measure is also the result of the demonstrations carried out by a number of trade unions to improve the social rights of undocumented workers. As there is no official data on the number of undocumented foreign workers, only estimates are available, which suggest that there is between 200,000 and 400,000 migrant workers without the right to work.
The aim is to offer better protection for undocumented migrant workers employed in companies that are then subsequently repatriated to their country of origin, by imposing special burdens on such companies. Employers will have to pay compensation, back wages and payroll taxes. The process requires an assumption that an employer is responsible for all costs of sending back the worker to their country of residence, whether voluntarily or not. This could involve the employer making special arrangements to transfer monies owed to the worker once they have returned to their home country.
When an enforcement officer responsible for tracking perpetrators of the employment of illegal workers (labour inspectors, police officers, etc.) discovers that a migrant worker is working, and in the absence of the relevant paperwork permitting them to work in France, they must present the worker with a document setting out their rights (LC art. R. 8252-1).
This document contains the following information (LC. R. 8252-2):
- the right to wages due for the period of illegal employment and to damages, from the former employer, for breaching the employment relationship (LC art. L. 8252-2, 1° and 2°);
- the obligation of the employer to issue payslips, a certificate of employment and the final settlement for the period of employment with the company;
- the possibility, if the migrant worker is placed in detention or is under house arrest, for them to obtain their wages and allowances from the OFII (French Office for Immigration and Integration) (LC. art. L. 8252-4, al. 1);
- the possibility, if appropriate, for the employee to take a claim to the Labour Court (Conseil des Prud’hommes) to obtain the payment of their salary and allowances, not recovered by OFII, including using the support of a trade union;
- the possibility to go to the Labour Court to claim damages if the migrant worker is able to establish the existence of injury (LC. art. L. 8252-2);
- the possibility of charges being made against a person accused of having committed a criminal offence (trafficking, pimping and subsequent offences) and to obtain for this purpose a temporary residence permit for 'private and family life' for the period of the procedure (Ceseda, art. L. 316-1);
- an indication, in the event of a breach in the employment relationship, that of damages payable equal to the value of three months’ wages, provided in cases of overseas employment of workers without the right to work, or damages equal to six months’ wages in the event of cases involving undeclared labour - either in the case of an employer concealing activity or concealing employment.
The document is translated into English, Arabic, Chinese, Spanish, Portuguese and Russian. Furthermore, this information is displayed in public areas of the detention centre (Ceseda, Art. R. 553-4).
The employer must pay, by any means, the salary arrears (wages, allowances and other elements) directly to the migrant worker within 30 days after the positive ruling of infringement. If the employer cannot prove the length of the period they employed the worker, they must by law pay them three months’ salary. Also, in case of breach of the employment relationship, the employee will receive damages equal to three months’ salary. Where appropriate, the employer must cover the costs of sending on payments to the country from which the migrant worker left, voluntarily or involuntarily. The employer must give the employee the corresponding pay slips, a certificate of work and the final settlement. It must also justify to the OFII, by any means, that it has fulfilled its legal obligations (LC. art. R. 8252-6).
When the migrant worker is placed in detention, in house arrest or when no longer within the country, the employer must, within 30 days after the finding of infringement, pay such sums to the OFII, which will then pay the employee (LC. art. R. 8252-7).
The director of the OFII may also decide to implement the financial solidarity of the main contractor.
The actors involved are judges (labour court, correctional court), officials in charge of inspections, such as labour inspectors or policeman, and the French Office for Immigration and Integration (OFII).
Outcome of evaluations: lessons and conclusions
Achievement of objectives
As the new measures were introduced late in 2011, an official assessment is not available. By mid-November 2012, the Ministry of Labour will have organised a conference and published the annual report of the National Commission for Combating Illegal Work, which contains new data on the fight against illegal work, and will probably contain some data on the new measures.
This measure applies at the national level to all companies. It could be used by other Member States that currently make no use from administrative sanctions.
- French Office for Immigration and Integration: OFII.
- Ministry of Labour, General Directorate of Labour.
The measure aims to provide financial support to illegal workers considered to be victims of employers. The value of financial support ranges from one to three months of the total wages that must be paid to illegal workers unable to prove the duration of their working period. The measure also increases the possibility of receiving the amount of money they would have if they return in their country. If these measures favour illegal workers, they also strengthen other measures aimed at discouraging illegal forms of employment used to raise the costs of using illegal workers.
Décret n° 2011-1693 du 30 novembre 2011
Arrêté du 30 novembre 2011, NOR : IOCL1131488A
Liaisons sociales, “Loi relative à l’immigration – Mesures concernant l’emploi”, Légis. soc. - n°155/2011 du 3 août 2011
Frédéric Turlan, IR Share