Summary
The basic elements of the employment contract
The three essential elements for the existence of an employment contract are:
- a benefit (a work) ;
- a remuneration (usually a salary);
- a legal subordination which is understood as the faculty for the employer to exercise authority over the employee, to give him orders and directives, to monitor their execution and to take, if necessary, sanctions against him.
Thus, even if a craftsman is paid by an individual to do a job (repair for example), he does it without receiving instructions or advice because he is the person skilled in the art who holds the know-how. In this case, therefore, there is no employment contract, but a contract for the provision of services.
Declaration prior to employment
The nominative declaration of employees before hiring to the social protection organizations and Urssaf is mandatory for all employers. The declaration must indicate the identity of the employer, that of the employee, his social security number and the date of hiring. It must be sent within 8 days preceding the date of hiring and a copy is given to the employee.
The prior declaration is made through the Single Hiring Declaration (DUE) which allows the employer to carry out many formalities in one go. Please note that the single declaration of employment must be made before the employee arrives on the premises.
Is a written employment contract mandatory?
He is obligatorily written for :
It is not legally required for an open-ended employment contract. But many collective agreements require it.
It is strongly recommended, even when writing is not mandatory, to ask the employer to sign a written contract. Apart from the hypotheses where writing is compulsory, the employee cannot demand it. However, if there is no written contract or letter of engagement, the employee must be given a copy of the prior nominative declaration.
What forms can it take?
It can be a contract signed by both parties or a letter of commitment (the most frequent case), possibly countersigned by the employee. It must be written in French.
It can be concluded by internet when it is a contract where writing is not required (eg: CDI).
Attention ! The electronic writing will only be valid as a means of proof. It is best to sign a real written contract.
What should it mention?
Even when it is not mandatory, it is preferable to draw up a written employment contract specifying:
- the name and address of the employer;
- the employee’s first and last names;
- date of hire;
- the length of the trial period;
- the position assigned (indication of qualification, hierarchical coefficient);
- severance pay;
- work place ;
- the collective agreement that will apply;
- any benefit promised on an individual basis and not included in the collective agreement or company agreement.
The employee is invited to carefully examine the content of the employment contract that he is about to sign. The employer cannot force him to sign without first reading the entire contract. Particular attention should be paid to certain clausesamong :
- the exclusivity clause;
- the confidentiality clause;
- the non-competition clause;
- the mobility clause;
- the withdrawal-training clause;
- the job guarantee clause.