Some employers are taking advantage of the crisis to take, neither seen nor known, some liberties with the Labor Code. Result: some unusual clauses flourish in employment contracts. Point on the most recurring and their consequences for you. Keep an eye out.
1 Decree that we are going to separate “good friends”
We owe the anecdote to a headhunter. “”An employer had included in its contracts a clause providing for the prohibition to resign at certain times of the year,” recalls Nadia Boutaleb, partner of the firm Alterview. He suspected it was illegal but hoped it would work with some employees. ”
“It is the freedom of everyone to invent clauses, observes Albert Hamoui, lawyer specializing in labor law. I have even already seen a clause requiring the employee to renounce, in advance, to take legal action at the end of the employment contract! Needless to say, such an illegal clause would be considered void in the eyes of a judge. ”
“He suspected it was illegal, but hoped it would work with some employees.”
2 Interfere too closely with your privacy
There are reserved areas, including employee privacy. ” Thus, clauses prohibiting marriage between members of the same company are prohibited., just like the celibacy clauses ”, explains Maître Frédérique Guimelchain, author of the guide Employment contracts, employer-employee relations. “”The clauses which undermine the freedom of the employee are in principle illegal under Article L 1121-2 of the Labor Code”, confirms Alexandra Hawrylszyn of the Légadroit cabinet. This also applies, in particular, to freedom of association.
3 Forcing you to wear makeup … for free
“Certain attacks on the freedom of the employee can be tolerated on condition that they are supervised, such as the freedom of clothing”, continues the lawyer. ” We do not impose an outfit or makeup without reason or consideration, comments Albert Hamoui. For example, the Collective Services Agreement, which governs events, provides for financial compensation, even symbolic, when a hostess must wear makeup. Likewise, if we oblige the employee of a clothing store to wear his mark, we must provide the clothing and provide for their maintenance. ”
4 Prohibit working for the competition … for life
The same argument governs the non-competition clause. “It must be justified by an interest in the company,” comments the lawyer. But she is also limited in time and space and gives rise to financial compensation. In other words: there is no question of prohibiting you from working for the competition for life and throughout London. And even less for free!
5 Get reimbursed for your training
Nadia Boutaleb is familiar with this clause. “This is called the forfeiture-training clause. It's legal, but within reason. ” Can an employer who paid you for expensive training force you to reimburse it in full in the event of resignation? Some try. “Such a clause is not valid, adds our recruiter. The law provides for a legal maximum of three years following training. If the employee leaves before, he can reimburse part of it, but in a very degressive manner. And such a clause generally only applies to very expensive training courses, over 10,000 Pounds. ”
6 Index your salary to anything
Another subtlety in certain contracts: indexing your salary on incongruous indices. “”Any clause which would index wages on price indices such as that of the INSEE, the minimum wage, the prices of goods, products and services not having a direct relationship with the object of the contract or with the activity of the parties ”, insists Frédérique Guimelchain.
7 Plan working hours on a Sunday
“A few years ago, remembers Albert Hamoui, I dealt with the case of a famous shoemaker who provided for working hours on Sundays when it was prohibited by law. The recent demonstrations in DIY stores or on the Champs-Elysées brought back some memories to him. “I know a Londonian department store which added in its contracts a clause obliging its employees to work on Sundays, even specifying the hours of presence. It's totally illegal for the simple reason that the law does not allow it! ”
What to do with an unfair term?
“”In no case may the clauses appearing in the employment contract derogate from the more favorable clauses provided for by the Labor Code or the employee's collective agreement”, summarizes Frédérique Guimelchain. However, the nullity of these clauses “does not invalidate the contract, but only the illegal clause. “” You can oppose a clause if it is illegal or request an amendment if it needs to be framed, specifies Albert Hamoui. Or, for certain clauses relating to the end of the contract, to say nothing knowing that they are worth nothing and that you will not apply them… ”