1/ You may have to modify your Code of Ethics/Conduct

French law may prohibit the inclusion of certain obligations in your Code or require you to add certain local legal requirements. For example, employees’ freedom of expression and right to privacy is highly protected in France. This can namely make it difficult to regulate what employees cannot say on social media or to impose disclosure of conflicts of interests. French law has also seen many developments in recent years with regards anti-corruption, money-laundering, psychological harassment, sexual harassment and discrimination which may require you to adapt the contents of your Code. It is therefore crucial that you have local counsel review your Code before rolling it out to your French employees.

Quick Tip: if your Code is a document which only sets out general principles such as the fact that you have a zero tolerance policy on bribery or that you wish to have a diverse and inclusive workplace, it will be easier to roll it out unchanged. You can then include links in your Code to more detailed policies adapted to the local legal constraints of each country in which you operate. If your Code does need to be adapted, make sure that you have a version of the Code as applied in France in your local language for your future reference.

2/ Your Code may need to reviewed by staff representatives and validated by the labour inspector

Your French subsidiary may have Staff Representatives (“Comité Economique et Social – CSE”) and/or Internal Work Rules (“Règlement Intérieur”). The contents of the Internal Work Rules are defined by law and namely cover such subjects as health and safety, harassment and discrimination and the company’s disciplinary policy. In principle, you cannot discipline staff for misbehaviour which is not prohibited in the Internal Work Rules. You therefore will probably want your Code to be integrated to these Rules. To do so, you need to inform and consult your Staff Representatives. Their opinion is not binding but they need to be given sufficient information and time (maximum 1 month) to render such opinion. Before you can communicate your Code to all employees, the modified Internal Work Rules, with your Code and the Staff Representatives’ opinion then need to be communicated to the local Employment Tribunal but also to the local Labour Inspector who does have the power to impose changes to the Code in case of non-compliance with French law.

Quick Tip : if applicable to your operations in France, do not try to rush through this process as putting pressure on Staff Representatives to give their opinion quickly can be considered a criminal offence.

3/ You may have to adapt your whistleblowing policy

If you have more than 50 employees working in France, you will be subject to the French anticorruption law (“Loi Sapin II law”) which namely requires you to set up a whistleblowing mechanism. There are strict rules with regards the type of subjects which can be reported via the whistleblowing line and how reports must be handled and investigated. In addition, there are strict data privacy rules with regards what data can be collected, used, kept and transferred abroad. Again, you will have to inform and consult the Staff Representatives on this policy.

Quick Tip : if you are using an external whistleblowing provider, ensure that they are aware and up to date on French regulations.

4/ Your code should be translated into French

Even if all your subsidiary’s French employees understand the language in which your Code is written, it is highly recommended to have it translated. This is mandatory for any rules relating to health and safety which your Code will no doubt contain. Also, if you have decided to integrate your Code into your French subsidiary’s Internal Work Rules (see 2/ above), this is mandatory.

Quick Tip: turn this constraint into an opportunity. Get your French subsidiary’s management to participate in translating your Code. Not only will this ensure a better translation because they understand your Company’s terminology but it will also create engagement as they will participated in creating the document.

5/ You should not ask third parties to comply with your Code

In France, having employee status offers a high level of legal protection against termination and many benefits. What distinguishes an employee from a contractor/service provider is the level of control the company exerts on their activity and behaviour. Asking a contractor/service provider to comply with your Code could therefore be used to try and obtain employee status.

Quick Tip: most of your Code can usually be redrafted into a contractor/service provider “code” to be included in their service contract. For suppliers, it is preferable to draft a specific Supplier Code as expectations will not be the same. For example, additional environmental or human rights obligations may need to be added.

For further advice or additional assistance on ethics and compliance programs, please contact our Ethics, Diversity & CSR Practice : https://www.flichygrange.com/ethics-diversity-and-csr