The law practice accompanies private individuals and businesses during all their decisions and daily legal acts and in particular in the following areas of expertise :
The individual employment relationship :
Conclusion of the contract (permanent contract, fixed-term contract, temporary employment), work conditions, relations with third parties (occupational physician, labour inspector, minister…), disciplinary authority, termination of the contract (dismissal, resignation, mutually agreed termination, notification of termination, legal termination of the employment contract…)
Collective labour relations :
Relations with employees’ representatives, works councils, the CSE including CHSCT (Committee on hygiene, safety and working conditions), negotiation of agreements with bodies representing staff.
Establishment of deferred compensation systems (profit sharing, participation, savings plans, employee share ownership plans).
Establishment of employment regulations.
Advice and collective disputes at collective proceedings, mergers and acquisitions, restructuring and business reorganisations (business transfers, geographical and/or professional mobility plans, harmonization of the statutes, collective redundancy plans and plans for the safeguarding of employment, etc.).
Compliance and prospective audits, risk audits.
Criminal law applied to labour
Risk being multifaceted (industrial activities, product quality, reputation risk, human resources management risks, etc.) and inevitable (even unavoidable), it must be pre-empted, managed and spread across the enterprise.
Hence, in civil law, a business leader may initiate his vicarious liability because of wrongdoing by one of his employees.
In environmental law, the definition of the precautionary principle also refers to the concept of “risk”.
In labour law, risk prevention and its criminal sanction is omnipresent. Thus, the fourth part of the labour code concerning “safety and health at work” discusses at length the prevention by employers of various risks employees may run while performing their professional activities :
- The prevention of certain risks of exposure (chemical and biological risks, noise exposure, exposure to mechanical vibrations and to ionizing radiation …)
- Prevention associated with certain activities or operations
- Obstructionto the exercise of freedom of expression, of the right to work, of association, of assembly or of demonstration, obstruction to bodies representing staff, obstruction to the exercise of trade union rights, to labour inspection.
- Working hours : non-compliance with the provisions for statutory working hours, for overtime, on exceeding the average weekly working time, etc.
- Work by foreign nationals : concealment of activity by failing to register with the RCS (Register of Companies) or failure to register with the social welfare authorities or with the administration, concealment of paid employment, etc.
- Discrimination : discriminatory dismissal, discriminatory refusal of employment, anti-union discrimination.
- Harassment: psychological and sexual harassment.
- Criminal proceedings initiated by URSSAF (The Social Security and Family Allowance Fund): non-payment of employers’ social security contributions, failure to produce declarations, withholding at source. The offence becomes a crime in the case of a second or subsequent offence.
The omnipresence of the criminal risk is notably due to the proliferation of players likely to reveal an offence :
- The exercise of the right of alert and of extensive disclosures, by the unions, the CSE including health, hygiene and safety committee, the employees’ representatives, the employees (especially the compliance alerts system called whistleblowing), the auditors, groups of private individuals ;
- The empowerment to report by administration and public service officials and agents (customs, tax inspectors, DIRECCTE agents (regional department of enterprise, competition and consumer affairs, labour and employment), labour inspectors…) ;
- The independent administrative authorities (CNIL, AMF, Competition authority, ACP, HALDE, ARJEL)
The risk of criminal prosecution:
- The company, its management and employees before the police officer (requisitions, hearings, custody)
- Searches and seizures in the company
- Preparatory inquiry
- The hearing. It is incumbent upon the lawyer to anticipate the legal consequences, to prepare his client for the various stages of the criminal proceedings, to identify the weaknesses of the case, to advise the client to collect the evidence of his innocence and to put in place a defence strategy