Essential and mandatory, the employment contract sets out the rights and obligations of the employee and the employer. Although it can be oral, it is strongly recommended to draw up a properly written employment contract.
What clauses are mandatory? What information is legal or illegal?
Here is a comprehensive guide to help you draft this very specific contract!
Is drafting an employment contract mandatory?
In certain circumstances, no — the employment contract does not have to be written; it can perfectly well be concluded orally. Only the full-time permanent contract (CDI) can benefit from this treatment (if it is one!).
Other types of employment contracts must, however, be in written form.
The law considers that the first payslip for a permanent contract replaces an employment contract since it states the minimum legal information.
However, it is preferable to draw up an employment contract to formalize the hiring of an employee, especially if a probationary period is planned.
Finally, be aware that if you choose not to draw up an employment contract for your future permanent employee, you must provide a prior declaration of employment.
This is a mandatory formality with the URSSAF (Article L 1221-10 of the Labour Code) and failure to comply is heavily sanctioned:
- A fine amounting to 300 times the hourly rate of the guaranteed minimum.
- Regularization of unpaid social security contributions.
- Sanctions that can include up to 3 years' imprisonment.
- A fine of €45,000 for an individual employer and €225,000 for a corporate employer.
What are the minimum required details?
Whatever the type of employment contract drafted, certain information is common to all. These minimum clauses cannot be to the detriment of the employee.
If they are, they become void and the law or the collective agreement then takes precedence.
You must therefore state clearly:
- The full identity (birth name, married name and first name) of the employee and of the employer.
- The type of contract (permanent contract, fixed-term contract…).
- The contract start date, the duration of the probationary period, if any, and the terms for its renewal.
- The job title.
- The workplace address.
- The working hours (part-time or full-time).
- The salary.
What are the mandatory clauses?
In addition to these minimum clauses, each employment contract contains mandatory clauses, detailed here according to the type of contract.
Mandatory clauses for a CDI (open-ended contract)
As we have seen, drafting a contract for a full-time permanent position is far less restrictive than other employment documents. However, it must also specify:
- Paid leave.
- The notice period.
Mandatory clauses for a CDD (fixed-term contract)
Fixed-term contracts are limited by law, and an employer using a fixed-term contract must always justify the reason (only five are recognized by law).
Thus, here are the mandatory details to include:
- The reason:
- Seasonal jobs (tourism, agriculture and the food industry for harvests, for example).
- Replacement of an absence (temporary absence, contract suspended for illness, maternity or other reasons, employee temporarily moved to part-time, pending the arrival of an employee hired on a permanent contract or the departure of an employee occupying a position that is to be eliminated eventually).
- Temporary increase in activity.
- Positions where practice rules out the use of a permanent contract due to the temporary nature of the work (fairground activity, cultural events, surveys or polls, entertainment, professional sport…).
- Special positions (insertion fixed-term contracts, apprenticeship contracts, senior fixed-term contracts, harvest contracts…).
- The duration: the contract's start and end dates must be stated, as well as the length of the probationary period, the weekly working hours for a part-time job, and the contract renewal clause.
- The position held: the job title, the employee's professional qualification, and the name of the replaced employee if applicable.
- Remuneration: the amount must be clearly indicated and must in no case be lower than that provided for a permanent employee of the same qualification occupying an equivalent position in the company.
Mandatory clauses for a temporary agency contract (intérim)
The following must appear on a temporary work contract:
- The length of the probationary period.
- The employee's qualification and duties.
- The salary payment date.
- Information on the supplementary pension fund and the provident organization to which the temporary employment company belongs.
- The clauses set out in the contract for the provision of staff.
- A clause stating that the company may hire the employee at the end of their assignment.
Mandatory clauses for part-time contracts
Any work under 35 hours per week is considered part-time. You must therefore specify:
- The employee's qualifications and duties.
- Working hours and their conditions of application (distribution across days of the week or month).
- Remuneration.
- The number of overtime hours that may be required.
- The means by which the employee's schedule is communicated.
What are the special clauses?
Depending on the company's activity, several clauses may be added to the employment contract, provided they comply with labor law and the applicable collective bargaining agreement, of course!
Among the most common special clauses, you may need to specify:
- On-call duty: It is a period during which the employee must be present at home or near the company in order to get to the workplace quickly.
- Training repayment clause: It requires the employee to remain at the company's disposal for a period of time under penalty of repaying training costs. Warning: it is only valid for very costly training and if the employee resigns less than three years after completing the training. If these conditions are not met, the clause is then abusive.
- Secondment: The employer has the possibility of assigning an employee to another company without terminating the contract.
- Mobility clause: It requires the employee to accept a geographic relocation.
- Loyalty clause: It prohibits an employee from carrying out a competing activity on their own behalf or for a competing company.
Which clauses are illegal?
These abusive clauses are provisions that restrict employees' fundamental freedoms or violate labor law or the collective bargaining agreement. They are prohibited and severely sanctioned by law.
Here are the most frequent illicit clauses:
- The exclusivity clause: It prohibits an employee from holding multiple jobs. To be legitimate, it must be justified by the nature of the job and the company’s interest. However, it is strictly prohibited for a part-time contract.
- The non-compete clause: If the employer forbids the employee from carrying out a similar activity in another company after the termination of their employment contract, the employer must justify the decision, limit it in time and space, and compensate the employee in return.
- The objective clause: If the objectives set are unreasonable and unattainable, the clause is considered abusive.
- The retirement clause: It is strictly forbidden to set a contract termination date based on the employee’s age.
- The single-status clause: It is forbidden to force an employee to remain single, just as it is forbidden to prevent two employees of the same company from marrying each other.
- The arbitration clause: The employer does not have the right to designate a specific labour court as competent in the event of a dispute.
How to draw up an employment contract properly?
You now have all the information to draft a solid employment contract. To finish your drafting, note that there are a few rules to follow:
- The contract must be written in French. It may contain foreign terms, but these must be clearly defined.
- You must include all the legal information required by the Labour Code.
- The employment contract establishes the basis of your future collaboration and can be negotiated between both parties, with provisions advantageous to both the employer and the employee.
Our advice
You will find many employment contract templates on the Internet, but we strongly advise you to avoid them.
They often contain many errors and a single omission can have serious consequences for your company (a fixed-term contract being reclassified as a permanent contract, litigation over an abusive clause…).
To draft a flawless employment contract, it is preferable to call on a professional web writer who will pay attention to the smallest legal details!
