News & Events

Marriage Equality in France: What Consequences for the Employers?

Submitted By Firm: Fromont Briens

Contact(s): Sophie Pelicier Loevenbruck

Author(s):

Sophie Pelicier Loevenbruck

Date Published: 7/2/2013

Article Type: Legal Update

Share This:

France became the 14th country worldwide to pass marriage equality into law, after French President François Hollande signed the bill into law on May 18th, as the Constitutional Council (« Conseil constitutionnel ») has rejected claims of unconstitutionality from right-winged legislators. The statute was adopted amid mass demonstrations by opponents of marriage equality and considerable political debate.

As of today, eight other countries in Europe currently allow same-sex couples to marry – Belgium, Denmark, Iceland, the Netherlands, Norway, Portugal, Spain and Sweden.

By granting same-sex couples the right to marry as well as adoption rights and by no longer linking certain benefits to the status of heterosexual married couple, the « marriage for all » statute (« mariage pour tous ») will inevitably have an impact on employment law. Human resources departments will therefore have to adapt to this new piece of legislation, leading to additional expenses.

I. Immediate Consequences

  • Family leave days (« Congés familiaux »)

The creation of new social rights will allow same-sex couples to benefit from any leave in link with the recognition of their status as a married couple. For instance, according to Article L. 3142-1 of the French Labour Code, same-sex married couples will now benefit from:

  • a 4-day leave for their wedding;
  • a 3-day leave for the birth or the adoption of a child;
  • a 2-day leave in the event that their partner or child dies;
  • a 1-day leave for the wedding of one of their children;
  • a 1-day leave in the event that their mother, father, brother, sister, mother-in-law or father-in-law dies.

Those days do not entail a wage decrease and will be considered as effective worked days.

  • Adoption leave (« Congé d’adoption »)

Just like paternity leave grants a right to an 11-day leave, adoption gives a right to a leave to the adopting employee of:

  • 10 weeks in general;
  • 18 weeks when the adoption brings the number of children in the household to 3 or more;
  • 22 weeks in the event of multiple adoptions.

Such a change will need to be taken into account at the HR level, since it will be necessary to accommodate potentially more employee absences.

  • Touch-ups to the statutory pension regime

In addition to allowing same-sex couples to benefit from a fraction of the spouse’s pension after his death, the statute leads to an increase of the statutory pension insurance period for same-sex couples.

In France, four additional trimesters are granted for the birth of the adoption of a child, as well as for his education. As a general rule, in the absence of a choice, the trimesters are credited to the mother. For same-sex couples, there will be an equal division between the two partners.

  • Potential changes in the order of dismissals

In France, the redundancy procedure varies depending on the number of redundancies considered, the size of the business and the timeframe within which the redundancies take place.

In any case, the employer must establish an order for the redundancies based on criteria defined either by a collective agreement or, failing that, by him after consultation of staff representatives. These criteria are usually in relation with the employee’s family responsibilities, seniority, specific social difficulties or professional abilities. As long as all statutory selection criteria are considered, the employer can give priority to one of these criteria.

In such a context, the « marriage for all » statute will therefore allow same-sex couples to assert their married status as a way to avoid being laid off, under the family responsibilities criterion.

  • A necessary adaptation of collective agreements

Numerous collective agreements, company agreements or common practices grant specific rights to married couples. Now, companies that granted bonuses for marriage will have to grant said bonuses to same-sex couples.

Many of these agreements still mention « the wife and husband » and « father and mother » and will need to be modified; the same will go for the Labour Code and the Social Security Code.

  • The creation of a brand new right

As of today, homosexuality is still punished in approximately 60 countries, with sentences ranging from prison for a few months to life, physical abuses, deportation or forced labour.

Therefore, the statute creates a right for all homosexual employees that is not limited to marriage for all but aims at protecting homosexual employees against a transfer in a state which incriminates homosexuality. The new Article L. 1132-3-2 of the Labour Code holds that no employee can be sanctioned, dismissed or discriminated due to his sexual orientation for having refused a geographical transfer in a country incriminating homosexuality.

II. Privacy issues

According to a study carried out in 2011, 67% of homosexual employees abstain from revealing their sexual orientation to their employer and their colleagues. Here, in some cases, the employee will have to reveal his sexual orientation in order to benefit from given rights, raising the question of the privacy of the employee’s personal information. In most cases, when the worker claims his right to take a given leave, he will have to provide written proof to justify the situation, according to Article L. 3142-1 of the French Labour Code.

> The implications of the « marriage for all » statute at the HR level are therefore numerous. Although it is possible that some employees will continue hiding their sexual orientation at the expense of losing advantages to which they are entitled, it is also possible that the employees will no longer hesitate to claim damages on the basis grounds of discrimination based on their sexual orientation. Indeed, the French « Cour de cassation » recently held for the first time ever that an employer (a rather large bank) who had discriminated an employee during his career because of his sexual orientation should pay 600 000€ (approximately $785,000) in damages.

The homophobic atmosphere added to the fact that the employee was the only one to not be promoted to a position for which he was qualified and for which he had applied for 14 times constituted sufficient grounds for presuming a discrimination based on sexual orientation.

Find an Employment Lawyer

In all 50 U.S. states, every Canadian province, and over 135 countries. View or print a complete ELA member list by clicking here.

Find an Immigration Lawyer

Facilitate employee transfers around the globe. View or print a complete ELA member list by clicking here.

Global Business Immigration Law Handbook

Your free resource for obtaining key business immigration law information worldwide.

Client Successes

Altra Industrial Motion Inc.

Altra Industrial Motion Inc. has multiple locations in the U.S., as well as Central America, Europe, and Asia. The Employment Law Alliance has proved to be a great asset in assisting us in dealing with employment issues and matters in such diverse venues as Mexico, Australia, and Spain. We have obtained excellent results using the ELA network for matters ranging from a multi-state review of employment policies to assisting with individual employment issues in a variety of foreign jurisdictions.

In one instance, we were faced with an employment dispute with a former associate in Mexico that had the potential for substantial economic exposure. The matter had been pending for over a year, and we were not confident in the employment advice we had been receiving. I obtained a referral to the ELA counsel in Mexico, who was able to obtain a favorable resolution of the dispute in only a few days. Based on our experiences with the ELA, we would not hesitate to use its many resources for future employment law needs.

American University in Bulgaria

In my career I have been a practicing attorney, counsel to the Governor of Maine, and CEO of a major public utility. I have worked with many lawyers in many settings. When the American University in Bulgaria needed help with employment litigation in federal court in Syracuse, New York, we turned to Pierce Atwood, the ELA member we knew and trusted in Maine, for a referral. We were extremely pleased with the responsiveness and high quality of service we received from Bond Schoeneck & King, the ELA's firm in upstate New York. I would not hesitate to recommend the ELA to any employer.

David T. Flanagan
Member of Board of Trustees 

Arcata Associates

I really enjoyed the Conducting an Effective Internal Investigation in the United States webinar.  We are in the midst of a rather delicate employee relations issue in California right now and the discussion helped me tremendously.  It also reinforced things that you tend to forget if you don't do these investigations frequently.  So, many, many thanks to the Employment Law Alliance for putting that webinar together.  It was extremely beneficial.

Lynn Clayton
Vice President, Human Resources

Barrett Business Services, Inc.

I recently participated in the ELA-sponsored webinar on the Employee Free Choice Act.  I was most impressed with that presentation.  It was extremely helpful and very worthwhile.  I have also been utilizing the ELA's online Global Employer Handbook.  This compliance tool is absolutely terrific. 

I am familiar with several other products that purport to provide up-to- date employment law information and I believe that this resource is superior to other similar compliance manuals.  I am delighted that the ELA provides this free to its members' clients.

Boyd Coffee Company

Employment Law Alliance (ELA) has provided Boyd Coffee Company with a highly valued connection to resources, important information and learning. With complex operations and employees working in approximately 20 states, we are continually striving to keep abreast of specific state laws, many of which vary from state to state. We have participated in the ELA web seminars and have found the content very useful. We appreciate the ease, cost effectiveness and quality of the content and presenters offered by these web seminars.  The Global Employer Handbook has provided our company with a very helpful overview of legal issues in the various states in which we operate, and the network of attorneys has helped us manage issues that have arisen in states other than where our Roastery and corporate headquarters are located in Portland, Oregon.

Capgemini Outsourcing Services GmbH

As an international operating outsourcing and consulting supplier Capgemini has used firms of the Employment Law Alliance in Central Europe. We were always highly satisfied with the quality of employment law advice and the responsiveness. I can really recommend the ELA lawyers.

Hirschfeld Kraemer

As an employment lawyer based in San Francisco, I work closely with high tech clients with operations around the globe. Last year, one of my clients needed to implement a workforce reduction in a dozen countries simultaneously. And they gave me 48 hours to accomplish this. I don't know how I could have pulled this off without the resources of the ELA. I don't know of any single law firm that could have made this happen. My client received all of the help they needed in a timely fashion and on a cost effective basis.

Stephen J. Hirschfeld
Partner 

Hollywood Entertainment Corporation

As the Vice President for Litigation & Associate General Counsel for my company, I need to ensure that we have a team of top-notch employment lawyers in place in every jurisdiction where we do business. And I want to be confident that those lawyers know our business so they don't have to reinvent the wheel when a new legal matter arises. With more than 3400 stores and 35,000 employees operating in all 50 U.S. states and across Canada, we rely on the ELA to partner with us to help accomplish our objectives. I have been delighted with the consistent high quality of the work performed by ELA lawyers. I encourage other in-house counsel to use their services, as well.

Ingram Micro

Ingram Micro is the world's largest technology distributor, providing sales, marketing, and logistics services for the IT industry around the globe. With over 13,000 employees working throughout the U.S. and in 35 international countries, we need employment lawyers who we can count on to ensure global legal compliance. Our experience with many multi-state and multi-national law firms is that their employment law services are not always a high priority for them, and many do not have experts in many of their offices. The ELA has assembled an excellent team of highly skilled employment lawyers, wherever and whenever I need them, and they have proven to be an invaluable resource to our company.

Konami Gaming

Our company, Konami Gaming, Inc., is growing rapidly in a very diverse and highly regulated industry. We are aggressively entering new markets outside the domestic U.S., including Canada and South America. I have had the recent opportunity to utilize the services provided by the ELA. The legal advice was both responsive and professional. Most of all, the entire process was seamless since our Nevada attorney coordinated the services and legal advice requested. I look forward to working with the ELA in the future, as it serves as a great resource to the legal community.

Jennifer Martinez
Vice President, Human Resources

Nikkiso Cryo, Inc.

Until recently, I was unaware of the ELA's existence. We have subsidiaries and affiliates throughout the United States, as well as in Asia, the Middle East and Europe. When a recent legal issue arose in Texas, our long-time Nevada counsel, who is a member of the ELA, suggested that this matter be handled by his ELA colleague in Dallas. We are very pleased with the quality and timeliness of services provided by that firm, and we are excited to now have the ELA as an important asset to help us address employment law issues worldwide.

Palm, Inc.

The ELA network has been immensely important to our company in helping us address an array of human resources challenges around the world. I strongly encourage H.R. executives who have employees located in many different jurisdictions to utilize the ELA's unparalleled expertise and geographic coverage.

Stacy Murphy
Former Senior Director of Human Resources

Rich Products

As the General Counsel for a company with 6,500 employees operating across the U.S. and in eight countries, it is critical that I have top quality lawyers on the ground where we do business. The ELA is an indispensable resource. It has taken the guesswork out of finding the best employment counsel wherever we have a problem.

Jill K. Bond
Senior Vice President/General Counsel, Shared Services and Benefits

Ricoh Americas Corporation

We have direct sales and service offices all over the U.S., but have not necessarily had the need in the past for assistance with legal work in every state where we have a business presence. From time to time, we suddenly find ourselves facing a legal issue in a state where we have no outside counsel relationship. It has been a real benefit to know that the ELA has assembled such an impressive team of experts throughout the U.S. and overseas.

A few years ago, we faced a very tough discrimination lawsuit in Mississippi. We had never had to retain a lawyer there before. I was absolutely delighted with the Mississippi ELA firm. We received an excellent result. They will no doubt handle all of our employment law matters in Mississippi in the future. I have also obtained the assistance of several other ELA firms around the U.S. and have received the same outstanding service. The ELA is a tremendous resource for our company.

Roberts-Gordon LLC

Our affiliated companies have used the Employment Law Alliance in connection with numerous acquisitions, and have always been extremely pleased with our ability to obtain the highest quality legal advice on due diligence issues from jurisdiction to jurisdiction. We have found the Employment Law Alliance firms to be not only first rate with respect to their legal advice but also responsive and timely in assisting us with federal and state law issues critical to our due diligence efforts. We consider the Employment Law Alliance to be an important part of our team.

Rockwell Collins, Inc.

We have partnered with many ELA firms on the development and execution of case management strategies with very positive results. We have been very pleased with the legal advice and counsel provided by the law firms we have utilized who are affiliated with the Employment Law Alliance. The ELA firms we have worked with are customer focused, responsive, and thorough in their approach to handling labor and employment law matters.

Elizabeth Daly
Assistant General Counsel

Sanmina-SCI

Sanmina-SCI has facilities strategically located in key regions throughout the world. Our customers expect that we will provide them with the highest quality and most sophisticated services in the marketplace. We have that same expectation for the lawyers with whom we do business. With operations in 17 countries, we need to be certain that we have a team of lawyers working together to address our employment law needs worldwide. The ELA has delivered exactly what it promised-- seamless and consistent high quality services delivered in each locale around the globe. It has quickly become a key asset for our human resources department.

Starwood

We own, manage, and franchise hotels throughout the U.S. and in more than 90 countries. With more than 145,000 employees worldwide, ensuring that we comply with the complex web of local labor and employment laws in every one of these jurisdictions is a daunting task. The Employment Law Alliance has served as an important resource for us and we have benefited greatly from its expertise and long reach. When a legal dispute or issue has arisen in some far-flung place, Employment Law Alliance lawyers have always provided responsive, practical, and cost-effective assistance.

Wilmington Trust Corporation

Wilmington Trust has used the ELA to locate firms in California, Washington State, Georgia, and Europe. Our experience with the ELA lawyers with whom we have worked has always been one of complete satisfaction and prompt, practical advice.

Michael A. DiGregorio
General Counsel  

Loading...