Topic 4 The basics of the country’s labour market and the risks of Labour Exploitation – how to identify and report labour exploitation

Different situations can be considered as illegal work and are therefore reprehensible by the law.

• Concealed work: this is an independent activity that does not comply with commercial, fiscal and social rules. This also concerns concealing all or part of an employee’s activity
• Labour leasing outside the legal framework: Indeed, certain situations are allowed by law such as, for example, temporary work or groups of employers.
• The irregular employment of foreign workers, i.e. people who do not have a work permit
• Foreign labour traffick, i.e. bringing foreigners into the national territory without administrative authorisation.

In Europe, migrant workers are among the most exploited and criminalized, especially those without official papers. 

In France, employers need to the declare and verify with the administration, the situation of the foreigner with regard to their right to stay and to work.  In the event of non-compliance with these obligations, they may be subject to a criminal sanction as well as administrative fines.

Similarly, labour law includes provisions protecting the rights of illegally employed foreign workers, and more particularly the provisions provided for in Articles L. 8223-1, L. 8252-1 and L. 8252-2 of the Labor Code, which assimilate them to regularly hired employees, with the right to payment of salary and accessories. Unlike the employer, the employee cannot be personally prosecuted for illegal work. However, if the undeclared employee has benefited from social benefits such as the RSA (revenu de solidarité active) at the same time as his/her undeclared pay, this aid may be withdrawn and the person can be penalized by the organizations which paid it.

Even if not declared or in an illegal employment situation as a foreigner, the employee has rights which he can claim by contacting, depending on the situation:

• The labor inspectorate (l’inspection du travail)
• The industrial tribunal (conseil de prud’hommes)
• with regards to his social security situation —the primary health insurance fund (caisse d’assurance maladie) /the URSSAF /the MSA.

In the case of concealed work (travail au noir):

• You are entitled, in the event of dismissal, resignation, or expiry of the contract, to a fixed indemnity equal to six months’ salary. The difficulty is to prove that you were carrying out concealed work. When the employer has been criminally convicted, this does not pose a problem. Otherwise, you can use any means to prove this working relationship (e-mails, testimonials from colleagues, time sheets, etc.)

In the case of being employed without a work permit:

In case of a control, the worker is assimilated, from the date of his hiring, to an employee regularly engaged with regard to the obligations of the employer. The worker is entitled for the period of unlawful employment:

• The payment of salary and related accessories, less the sums previously received for the period in question
• In the event of termination of the employment relationship, to a lump sum equal to three months’ salary, unless there is a more favorable solution– where applicable, to the payment by the employer of all the costs of sending unpaid remuneration to the country to which he left voluntarily or was returned.

You can claim compensation for the damage you have suffered as a result of undeclared work. To do this, you must contact the Labor Court (Conseil de prud’hommes). Even if it is not mandatory, it is advisable to have the assistance of a lawyer. Depending on your resources, it is possible to obtain partial or total exemption from your costs by applying for legal aid.