"I found a great profile but I realized too late that he doesn’t have the documents authorizing him to work ” or “my recruitment team is pushing me against the wall by presenting me with candidates who are on the point of signing the employment contract… but have not taken the necessary immigration steps” sounds like a sweet melody that is far too recurring to your ears? Good news: you are not the only one in this situation. Many of our clients find themselves confronted with this type of situation and, apart from a simple question of internal organization, it is often due to the sensitivity of the discrimination/immigration situation and to certain questions which cannot be asked. …but which are nevertheless necessary to meet employer obligations to comply with immigration law.

An update on the subject with our colleague and lawyer specializing in international mobility, Emilie Ledan:

Hiring a foreign employee & employer obligations in France

There are numerous employer obligations when hiring a foreign employee, and the majority consist of guaranteeing the same conditions to foreign talent as if they were of French nationality (salary, legal working hours, social security, etc.).

The most important in terms of immigration is of course article L.8251-1 of the Labor Code which indicates that " no one may, directly or indirectly, hire, retain in their service or employ for any period whatsoever a foreigner not in possession of the title authorizing him to exercise salaried activity in France ”. The consequences can be very unfortunate in legal, financial and reputational terms and may harm your ability to recruit foreign employees in the future. The famous “ no one ” is also not supposed to ignore the law - the employer is therefore co-responsible, with the foreign talent, for the immigrant situation of the person: he must be informed of any change in said situation, but must also monitor the situation of its employees (new hires, changes in status, renewals, delays, etc.) like a pan on the fire.

And to do this, when recruiting a foreign employee, he must check the current situation of this potential recruit by asking him questions related, for example, to his nationality or his current situation in terms of immigration – in other words, doing a “ right to work check ”.

And this is where the problem lies, since it is easy to fall into the “discrimination” box…

Discrimination in hiring: what does the law in France say?

In France, there are around twenty discrimination criteria (Article L1132-1 - Labor Code - Légifrance (legifrance.gouv.fr) which may concern, among other things, gender, sexual orientation, origin, employment situation. family, sexual orientation, disability, etc. They aim to protect people in the world of work, safeguard our rights as human beings and preserve equal opportunities for all.

Regarding recruitment, anti-discrimination measures apply from the moment the job advertisement is drawn up. Once an initial selection has been made by the recruiter, he will deepen his research and questions to select the person best suited to take the position while navigating to avoid discriminating against candidates. And this is often when questions related to immigration should arise – very clearly, “ what is your nationality ” and “ do you have a valid residence permit ”? Warning here, since these questions can fall directly into the “discrimination” box and this can land the employer in court.

So what do we do?!

1. Clarify the recruitment process in France

The requirements set by the Labor Code lead to a distinction between the phase of approaching the candidate (recruitment) and that of concluding the employment relationship (hiring).

In most groups, the first phase is managed by the so-called “Talent Acquisition” teams - the second phase being most often governed by operational HR teams. In the candidate approach phase, the “TA” teams must not limit applications based on discriminatory criteria. This non-discrimination requirement is valid from the writing of the offer until the interviews are held. Indeed, the information requested from a candidate has the sole purpose of assessing his ability to occupy the job offered or his professional skills and must have a direct and necessary link with this job or with the evaluation of his skills. Thus, except in a few very rare, very specific cases, the condition of nationality is not considered as an element making it possible to assess the candidate's ability to occupy a position.

Thus, the question of the candidate's nationality can only be legitimately asked at the hiring stage.

2. Anticipate by asking the right questions

The golden rule in immigration: anticipate and to do this, during recruitment, it is necessary to know the status of the person very early to know what must be done in terms of immigration (change of status with or without work authorization, for example).

To do this, it may be possible to be transparent by indicating that any candidate (French or not) must be able to present their ability to legally work for a French company, and that to do this, any person of foreign nationality must be able to present a valid passport and immigration document proving your status.

As a reminder, a false declaration can justify the subsequent termination of the employment contract if it causes a situation detrimental to the employer – so everyone has to gain.

3. Train your teams

Training teams linked to recruitment within the company on immigration issues often has an impact on understanding recruitment issues, whether it concerns deadlines, problems that may arise, consequences on the company, etc. ….and allows for better collaboration between HR and recruitment teams, for example. At Oui Immigration, we regularly offer this type of training to our clients and the results are positive – not only because everyone is more aware of the constraints of the different teams and the different questions to ask, but because communication is This has improved, and the recruitment process has become more fluid.

4. Provide a special clause in the employment contract

It may also be wise to condition the implementation of the employment contract on obtaining the necessary authorizations. Get support from experts like Emilie Ledan to best write your proposals, letters of intent and employment contracts!

In any case, once this dilemma has been resolved and immigration issues clarified, don't forget to authenticate the person's title at least 48 working hours before they take up their position within your company! Yes, this is another obligation of the employer: Article R5221-41 - Labor Code - Légifrance.

Oui Immigration remains at your disposal for any questions/comments on this subject. Do not hesitate to contact us!