Analysis
14 July 2019

French Labor law considerations when dealing with internal investigation

Bastille Day Newsletter 2019 - Legislative, Regulatory & Policy Updates

 

The golden rule is that companies must conduct a neutral and objective investigation, respecting employee individual rights. Through due process, the company must consider both individual rights – including the right to privacy – as well as collective rights – of employee representatives and unions which can be achieved though inclusiveness in the code of conduct.

The employer duty to ensure legal protection

  • It is established that the client is free to choose his/her lawyer whether or not the lawyer’s fees are paid for by the company. Therefore, a company cannot bind its employees to a pre-designated lawyer. It can, however, set a proportionate maximum fee amount not to be exceeded or settle on a contingency fee agreement to anticipate the cost of defense.
  • The French Supreme Court held that employers must provide legal support to employees for acts committed in execution of their work 1.
  • The French Supreme Court based its decision on article 1194 of the French Civil Code 2, which provides that “contracts bind not only to what is expressed in it, but also to all of the implications that equity, usage or law provide.
  • According to this decision, the employer owes judicial protection to the employee unless the latter has committed a fault that does not constitute a corporate risk 3.
  • The employee is also covered by the employer if he/she is prosecuted for facts that fall outside the scope of his/her mission and if no fault or misconduct can be proven.
  • In that specific case, since the employee was dismissed by the criminal court, no fault could be imputed and therefore, the employer owed him judicial protection. The same result was obtained in case of discharge.
  • However, the company does not have to pay for lawyer fees for its non-salaried executive in case of breach to corporate law, neither in case of intentional offense 4.
  • Nevertheless, the fees incurred may be reimbursed by the company if an intentional offense was made in the interest of the company rather than for personal interest 5.

Employee’s guarantees regarding personal data collection

  • Internal investigations often include the collection of numerous documents and information regarding employees’ work (e-mail exchanges, transcript of telephone conversation; social network conversations…) that would be then, analyzed and recorded in the internal investigation report.
  • It results from the law that employee prior consent is required for the collection of some personal data 6.
  • However, non-professional data and information must be excluded at the beginning of the investigation, since it is prohibited to read, use and/or transcribe employee personal data 7.

Involving employee/union representatives in the process of implementing an internal investigation

  • Article 17 of the Sapin II Law 8 requires that companies implement a code of conduct that must be an appendix to the company’s internal rules and regulations.
  • This requirement has the consequence that employee/union representatives must be involved in establishing the code of conduct 9.
  • Some professionals recommend separating disciplinary measures from all other measures related to the anti-corruption plan in order to facilitate debates with employee/union representatives, who may want to get involved in the internal investigation 10.
  • Although employee/union representatives shall be consulted in the drafting of the anticorruption plan, it is not clear whether such a participation exonerates the corporation from informing them of the opening of an internal investigation, which may create an array of concerns.

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