This piece continues our recent series of articles about employment contract details in France.
In this article, we will cover the following clauses:
- Exclusivity and confidentiality
- Non-compete
- Termination and notice
- GDPR compliance
Exclusivity and confidentiality (clause d’exclusivité/clause de confidentialité)
An exclusivity clause forbids employees from working for other employers or pursuing different professional activities during their employment. However, such clauses must be balanced with the employee’s individual freedom of work, which is a fundamental tenet of French law.
It is broadly assumed that French employees will work exclusively for their employers, except in cases where prior written agreement states otherwise (and in some cases, those on part-time contracts). As such, a specific exclusivity clause must be justified by the nature of the employee’s work and/or a clear need to protect the company’s interests. Exclusivity needs to be balanced with the individual right to enterprise that employees legally benefit from. As such, they may carry out work that doesn’t compromise their employers’ legitimate interests and the obligations placed upon the employee such as respecting maximum working times.
There is a legal expectation of confidentiality and loyalty from the employee to the company, which generally negates the need for an overly-detailed clause. A reasonable time frame must be specified for ongoing confidentiality after the contract ends, unless the company has to protect a critical and ongoing trade secret.
Non-compete (clause de non-concurrence)
A non-compete clause may be included to protect the company’s interests following termination of the employee’s contract, by limiting the employee’s ability to undertake the same (or equivalent) business activities elsewhere. This clause must be explicitly written into the contract, or provided for by the convention collective on the date the contract is signed.
Several conditions must also be met in order for the non-compete clause to be valid. These include:
- Clearly-defined limits to both its duration and the geographic area covered
- Relevance to the employee’s work duties
- Proportionality to the objective pursued (in most cases, the protection of the company’s interests)
- Details of financial compensation to be paid to the employee
The employer may choose to waive the application of the non-compete clause, in which case no compensation will be paid (as long as stipulated conditions for waiving the clause are met). Note that overly restrictive non-compete clauses may be rendered invalid by the French Labour Court.
Termination and notice
The standard termination clause in a permanent contract will specify that both the employer and employee may terminate the contract at any time, in accordance with legal and contractual provisions in force. Both parties must also adhere to strict statutory rules and/or collective bargaining agreements regarding notice periods.
Fixed-term contracts may include a clause that specifies both parties’ right to terminate the contract immediately and without compensation in the event of serious misconduct (on either side) or force majeure, thus ending the contract earlier than its agreed termination date.
For all types of employment contract, it is standard to request that the employee return all company equipment and documents once their employment with the company has finished.
GDPR compliance
This clauseinforms employees of their rights regarding their personal data in relation to the company, including the reasons for its collection (such as for payroll purposes), processing and retention, as well as how to access, correct, and object to the processes stated.
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