France has been rocked by service disruptions since April 3 when employees of SNCF, the French public rail company, went on strike to protest against a bill that aims to shake up the company. This unprecedented manner of striking, organized as successive 48-hour strikes every five days, is expected to last until June 28. Strike actions have also been initiated in the air transport (Air France), waste collection, energy, and more generally in the civil service sectors. Meanwhile, employees are considering new types of actions to oppose government proposals, particularly in the energy sector, such as cutting off electricity to the retail giant Carrefour. In this maelstrom, it is time to take stock of the rights and obligations of companies and employees in the event of a strike.
A strike is defined under French labor law as the collective and concerted cessation of work by the employees of one or more companies in order to make professional claims. When the strike falls within this definition, employees are protected against any sanction or dismissal action. This protection is, however, lifted in the case of unlawful strike actions or abuse in the exercise of the right to strike.
For civil servants and staff with special status, such as those at the SNCF, the conditions for engaging in lawful strikes are more restrictive. For example, they must be initiated by a trade union, and a strike notice must be given. The rules set out below mainly concern private-sector companies.
In the private sector, a strike can be triggered at any time and without formality. The employer cannot command compliance with a notice period or specific formalities to exercise the right to strike, including by collective agreement.
The suspension of the striker’s employment agreement
The exercise of the right to strike suspends the performance of the employment agreement. Therefore, the employer does not have to pay salaries to strikers, provided that the payroll deduction is proportional to the actual working time that was spent on strike. (Otherwise, it will constitute a financial penalty, which is prohibited by French law.) The employer also does not have to provide paid days off or bank holidays that fall within the strike period.
The employer cannot unilaterally order the strikers to catch up on the working hours lost due to the exercise of their right to strike. However, the employer whose employees were late or absent because of an external strike (such as a strike in the transport or electricity sectors) may force employees to make up for lost time.
If, during the exercise of the right to strike, the employee is on a trial or notice period, this period must be extended for the duration of the strike.
The prohibition of sanctions
The employer cannot take any discriminatory measure or sanction against strikers because of their strike, in particular with regard to remuneration and social benefits. For instance, a specific bonus cannot be granted to non-striking employees only because they are not on strike.
The employer may not dismiss an employee for exercising his/her right to strike, except in case of wilful misconduct intended to cause harm to the employer or disrupt the company. For example, employees who have personally and actively participated in violent and unlawful acts, assault and battery, or sequestration may be dismissed.
The replacement of strikers
The employer cannot hire employees through fixed-term employment agreements (such as the Contrat à Durée Déterminée, or CDD) or temporary work contracts to replace strikers, subject to criminal sanctions. However, it is possible to reorganize the tasks of non-strikers to cover those of striking employees. A non-striking employee can thus be temporarily placed on the job of a striker. The employer may also use the services of another company (subcontracting, etc.).
The lockout ban
The temporary closure of the company decided upon by the employer during a strike or lockout is unlawful and requires the employer to compensate the employees for the subsequent loss of salary. An exception is when the employer is unable to provide work to employees and has to close the company, for the safety of staff, customers, and/or property, for instance.
Moreover, if the strikers decide to occupy the premises of the company, the employer may file emergency summary proceedings to expel them in the case of risk to the safety of persons and property. (This is generally very difficult to obtain.)
The notion of lawful strike
To benefit from the protection, employees must ensure that the strike falls within the definition mentioned above.
The strike must lead to a total cessation of work. Voluntarily defective performance of work is considered an unlawful exercise of the right to strike. In this respect, the plan by employees in the energy sector to switch some cities off-peak or cut off electricity for Carrefour stores is unlikely to be considered lawful.
Strikes must be aimed at professional demands. Since strikers must be personally interested in these demands, a solidarity strike is in principle unlawful.
A strike is unlawful if it is intended as part of protests of a political movement against government decisions. On the other hand, it would be lawful if the movement includes professional demands concerning all workers, such as pensions.
Abuse in exercising the right to strike
A lawful strike can degenerate into abuse and can be sanctioned if it causes or threatens to disrupt the company. This is the case, for instance, if strikers decide to perform many successive short strikes in order to disorganize the company or to harm its economic situation.
The responsibility of striking employees
Striking employees may incur civil liability if they have personally committed unlawful acts during the strike. They may be required to compensate non-strikers for the loss of their wages if access to the company's premises had been blocked.
Strikers may also be criminally liable in the case of sequestration or violence. The French Penal Code also punishes any restriction to the freedom to work with imprisonment and a fine of up to 15,000 euros ($18,421), although such convictions are rare.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact the authors, Charles Dauthier and Sabine Smith-Vidal, from Morgan Lewis’s Paris office.