There are two categories of employees: those who check each line of their employment contract, and those who simply look to see if the remuneration indicated is indeed that agreed upon when hired. On the business side, it’s the same: there are those who hire without writing. “For the CDI [contrat à durée indéterminée]there is no legal requirement that it be in writing. On the other hand, the CDD [contrat à durée déterminée] must be written, because, if this is not the case, it can be reclassified as a permanent contract”, indicates Christine Artus, associate lawyer in social law within the firm K & L Gates. These are the pay slips which show the employment relationship. “Moreover, a signed and accepted employment offer constitutes an employment contract,” notes the expert. “Many employers think that when they download a model. of employment contract, that is enough. However, drafting an employment contract requires a lot of thought and we are seeing a real evolution: it was two pages twenty years ago, it is 10 today”, indicates the expert. In reality, it is an ally for both parties: by precisely describing the reality of the work, it avoids or limits disputes.
The different remuneration levers
In the employment contract, reference is made to the national collective agreement, which is added to the law and any company agreements. In addition, the position, position and coefficient must be indicated. We must not forget the article on the trial period, if the employer wishes to provide for it, with its duration, a possible renewal according to the law and the collective agreement. Afterwards, comes the part on the fixed, gross remuneration, subject to social charges and withholding tax. Then, possible variable remuneration, “which can be of three orders”: it can first be provided for in the contract or a commission plan setting turnover objectives for the fiscal year. “It’s mathematical, salespeople and salespeople know this system very well.” Then there is the discretionary bonus, neither indicated in the employment contract nor guaranteed, but which is often linked to the company’s results and the employee’s performance. Finally, the contractual remuneration provided for by a bonus plan, with a maximum amount. This bonus “is often linked to the company’s results and the employee’s performance with objectives defined at the start of the fiscal year. An IT director will not be subject to objectives in terms of turnover like a salesperson, but varied such as the number of IT tickets resolved” – to see the efficiency and performance of its service.
In principle, these three methods of variable remuneration are not cumulative. In addition, if the 13th month is a salary element appearing in the collective agreement, there is no need to indicate it in the employment contract, but it must be specified if it results from a negotiation before hiring. Finally, “the provision of a company vehicle (for personal use, qualifying for a benefit in kind) and computer equipment which is not the subject of a collective company agreement may be provided for in the employment contract.
Points of vigilance
The legal duration of working time is 35 hours per week, but with adaptation arrangements: it can be 37 hours, 39 hours with payment for overtime. “With the days package, the maximum provided by law is 218 days worked per year, but collective agreements and collective company agreements may provide for a lower number of days worked, such as 212 days”, underlines Mᵉ Christine Artus . Which highlights several elements of vigilance: “Ensure that the employee is treated fairly with those who have a similar position. Then, that the remuneration is in line with the collective agreement and any company agreements. Finally, define the function of the employee. We see that there are more and more functions and titles which do not allow us to understand their scope.” You have to be as explicit as possible.
Christine Artus also recommends that the employer add an exclusivity clause, which prohibits the employee from carrying out a competing activity in parallel with the execution of their employment contract. A clause which can be added to a non-competition clause, which limits the employee’s freedom to exercise, after termination of their contract, equivalent functions with a competitor or on their own account. “Of course, if the non-competition clause is lifted, the ex-employee can work for the competition, but with loyalty and moderation,” concludes the lawyer.
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