Craig S. Smith: 4 simple rules for firing an employee in France
Craig S. Smith The New York Times
WEDNESDAY, MARCH 29, 2006
The French government wants to make it easy to fire young workers. Easier firing, easier hiring, the logic goes. Who wants to add people to the permanent payroll if it's painful and costly to undo a mistake?
The laws on "licenciement," as firing in France is called, are complex enough to fill a book, but in the end there are essentially four ways for an employer to deliver a pink slip. All involve time or money or both, because employees who don't want to go quietly can file a complaint with the Conseil des Prud'hommes, the court that rules on terminations.
1. Prove you can't afford the job.
Dismissing a person for economic reasons is legal but complicated. A company must be able to prove in court that eliminating the position is necessary either because of economic woes or because it is essential to remain competitive.
Companies must also show that they can't transfer the employee to another job. If employers have more than one person in the same position, they must explain why they are firing Pierre instead of Jean-Paul. And an employer must show that the decision was made using purely objective criteria.
If the company has more than 50 employees and wants to fire more than 10, it must create a "social plan" that includes efforts to minimize dismissals and provide for job training or other support for employees who are cut.
"That is huge work," said Joël Grangé, a lawyer for the Paris firm Gide Loyrette Nouel who represents employers. If the judge doesn't consider the social plan adequate, he can demand that the employer reinstate the jobs.
In any case, employers must first summon the workers to a preliminary meeting to warn them that they may lose their jobs. Then they must send a registered letter telling a worker he is fired, listing the reasons and explaining the efforts that were made to find him another position in the company and detailing the support he will receive later on - usually a training program.
It's worth getting it right, because if the procedure is not followed and the employee has worked at the company for two years or more, he may be entitled to damages. "Clearly the litigation on this is more and more," Grangé said.
2. Prove he did a bad, bad thing
"You can't just fire someone just because you don't like them," Grangé said. But you can fire him for doing a job badly. Again the company has to be able to prove in court that the grounds are real and serious, which can be difficult.
"For a salesman, for example, you have to demonstrate that his performance is not due to a bad product or market," Grangé said.
The employee will most likely counter that the reason isn't serious, and the courts are inclined to favor employees, he added.
"Judges ask for evidence that is very difficult to gather," he said, "They say, 'When you say he's a poor performer, are you sure it isn't due to a lack of organization in your company?' That's a very difficult thing to show."
3. Pay him to scram
Most cases brought by fired workers are settled out of court, but they include a hefty payment to avoid a trial, which can take years. Still, because settlements are exempt from taxes, it is usually in both the employer's and the employee's financial interest to go through that legal process rather than opt for the faster solution of paying the employee directly to resign.
Settlements are usually calculated to include payment for a notice period, or the time between notification and actual termination, during which employees continue to draw a salary. For blue-collar workers, that is usually two or three months, but it can be as long as six months for white-collar workers.
Settlements can also include several months' salary to pay for job training and include a severance payment that is determined by how long the employee has worked for the company and which industry he is in. Bank employees, for example, get at least one month's salary for every year they've worked.
Finally, there are damages, which can be just a few months' salary for a young person who has worked at a company less than two years but can be several years' salary for someone closer to retirement with many years at the company.
4. Put him in a cupboard and throw away the key
Some managers with problem employees simply "put them in the cupboard," as the French saying goes, which usually means moving them out of the way and leaving them alone in hopes that they eventually quit.
"But putting them in a cupboard is a very expensive way to do it," Grangé said, because the employees continue to draw a salary as long as they show up and don't give the company cause to fire them. Grangé added that such a strategy also carries risks. If Sophie has been set aside with nothing to do, she can ask the court to declare that she has been effectively fired without due process and then can claim damages.
Roger Cohen is on vacation. His Globalist column will resume next week
The laws on "licenciement," as firing in France is called, are complex enough to fill a book, but in the end there are essentially four ways for an employer to deliver a pink slip. All involve time or money or both, because employees who don't want to go quietly can file a complaint with the Conseil des Prud'hommes, the court that rules on terminations.
1. Prove you can't afford the job.
Dismissing a person for economic reasons is legal but complicated. A company must be able to prove in court that eliminating the position is necessary either because of economic woes or because it is essential to remain competitive.
Companies must also show that they can't transfer the employee to another job. If employers have more than one person in the same position, they must explain why they are firing Pierre instead of Jean-Paul. And an employer must show that the decision was made using purely objective criteria.
If the company has more than 50 employees and wants to fire more than 10, it must create a "social plan" that includes efforts to minimize dismissals and provide for job training or other support for employees who are cut.
"That is huge work," said Joël Grangé, a lawyer for the Paris firm Gide Loyrette Nouel who represents employers. If the judge doesn't consider the social plan adequate, he can demand that the employer reinstate the jobs.
In any case, employers must first summon the workers to a preliminary meeting to warn them that they may lose their jobs. Then they must send a registered letter telling a worker he is fired, listing the reasons and explaining the efforts that were made to find him another position in the company and detailing the support he will receive later on - usually a training program.
It's worth getting it right, because if the procedure is not followed and the employee has worked at the company for two years or more, he may be entitled to damages. "Clearly the litigation on this is more and more," Grangé said.
2. Prove he did a bad, bad thing
"You can't just fire someone just because you don't like them," Grangé said. But you can fire him for doing a job badly. Again the company has to be able to prove in court that the grounds are real and serious, which can be difficult.
"For a salesman, for example, you have to demonstrate that his performance is not due to a bad product or market," Grangé said.
The employee will most likely counter that the reason isn't serious, and the courts are inclined to favor employees, he added.
"Judges ask for evidence that is very difficult to gather," he said, "They say, 'When you say he's a poor performer, are you sure it isn't due to a lack of organization in your company?' That's a very difficult thing to show."
3. Pay him to scram
Most cases brought by fired workers are settled out of court, but they include a hefty payment to avoid a trial, which can take years. Still, because settlements are exempt from taxes, it is usually in both the employer's and the employee's financial interest to go through that legal process rather than opt for the faster solution of paying the employee directly to resign.
Settlements are usually calculated to include payment for a notice period, or the time between notification and actual termination, during which employees continue to draw a salary. For blue-collar workers, that is usually two or three months, but it can be as long as six months for white-collar workers.
Settlements can also include several months' salary to pay for job training and include a severance payment that is determined by how long the employee has worked for the company and which industry he is in. Bank employees, for example, get at least one month's salary for every year they've worked.
Finally, there are damages, which can be just a few months' salary for a young person who has worked at a company less than two years but can be several years' salary for someone closer to retirement with many years at the company.
4. Put him in a cupboard and throw away the key
Some managers with problem employees simply "put them in the cupboard," as the French saying goes, which usually means moving them out of the way and leaving them alone in hopes that they eventually quit.
"But putting them in a cupboard is a very expensive way to do it," Grangé said, because the employees continue to draw a salary as long as they show up and don't give the company cause to fire them. Grangé added that such a strategy also carries risks. If Sophie has been set aside with nothing to do, she can ask the court to declare that she has been effectively fired without due process and then can claim damages.
Roger Cohen is on vacation. His Globalist column will resume next week
經濟日報中文翻譯
法國人炒魷魚 四大招
■ 編譯劉煥彥／紐約時報二日電
法國政府想方便雇主開除年輕勞工，想法是如果容易炒人家魷魚，就容易引進新血。
■ 編譯劉煥彥／紐約時報二日電法國政府想方便雇主開除年輕勞工，想法是如果容易炒人家魷魚，就容易引進新血。
畢竟請神容易送神難，哪個老闆想在薪資名冊上加進更多人呢？
法國規定解聘員工的法律複雜到可以寫一本書，但簡單來說有四種方式可以叫人走路，只是每種都耗時或費錢。
1. 證明企業養不起員工
為經濟原因解聘員工是合法行為，但做起來很複雜。
企業必須在法庭上證明，裁員是因為經濟困難，或是維持競爭力的必要手段。
資方還得說明無法調職的原因。若該職務不只有一名上員工，雇主必須解釋為何開除張三而非李四，資方並且要證明這麼做，是根據純粹客觀的判斷條件。
就程序來說，雇主必須先召集員工舉行初步會議，警告其飯碗可能不保，接著再以掛號信通知員工被解雇、列出解雇原因，並解釋公司為幫對方調職所做的努力，以及詳細說明未來會提供的協助，通常這是指訓練計畫。
若資方未確實遵照程序，員工任職期間又超過兩年，員工就有權請求賠償。
2. 證明員工績效很差
代表雇主的巴黎法律事務所Gide Loyrette Nouel律師 柯隆吉(Joel Grange)說：「你不能看誰不爽就叫他走路。」除非對方工作表現差勁就可以炒他魷魚。
當然，企業必須能在法庭上證明解雇有理，這不見得是件易事。
3. 叫他拿錢走人
遭開除員工提出的訴訟，大多在庭外和解。由於這種官司一打就可能拖上好幾年，資方通常想花錢了事。
和解金通常包含通知期間內的員工薪資。這段時間對藍領階級而言通常是兩、三個月，白領階級則可能長達半年。
和解金可能還包括數個月薪水以支付技能訓練，連同離職給付。離職給付視當事人的行業及服務年資而定。
4. 把對方打入冷宮
照法國人說法，有些主管處理問題員工的方式是「把他們丟到櫃子去」，這通常表示將其調離現職，不再聞問，希望他們最後自己走人。
但這麼做有兩個缺點。第一是當事人只要繼續上班就能照領薪水，讓公司找不到解雇的藉口。第二是對方可以雇主未依正常程序解聘為由而請求賠償。
【2006/04/03 經濟日報】
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