Limits on hiring an employee
Freedom to hire is guaranteed to the employer by the Constitutional Council. It can a priori choose freely their future employees. However, it is required to maintain certain principles, governed by laws.
Prohibition of discrimination in hiring
The Labor Code states that no person can be excluded from a recruitment process due to:
- its origin;
- marital status;
- his manners;
- sexual orientation;
- physical appearance;
- his name;
- his age;
- her pregnancy;
- marital status;
- membership in an ethnic group, nation or race;
- political opinions;
- his union activity;
- his religious beliefs.
Limitation of the employment working hours
Before hiring an employee, the employer must ensure that it does not engage in other business activities incompatible with the post. Normally, the multiple job holding is possible but there are limits on maximum working hours (10 hours per day, 48 hours a week, and 44 hours on average for 12 consecutive weeks). The employer who fails to comply with this prohibition is liable to criminal penalties. However, it does not apply to certain activities such as artistic scientific, literary, etc. Civil servants and public officials are subject to specific rules. Without exception, they are forbidden to occupy a private paid employment or carry on a private basis, work for remuneration.
It covers illegal poaching the following acts:
- hiring an employee, after intervening in the wrongful termination of the employment contract binding him to his previous employer;
- hiring an employee, although knowing already bound by a contract of employment.
Apart from these cases, the new employer may be ordered to pay damages and interest to the former employer if his maneuvers poaching are in the nature of unfair competition.
Hiring an employee bound by a non-compete clause
In the case of hiring of an employee bound by a clause of non competition, from the new employer may be liable if it is proven that:
- The new employer was aware of the clause at the time of hiring;
- The employer had knowledge but subsequently does not separated from the employee.