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The golden hello, or welcome bonus, is a practice which consists in paying a bonus to the newly hired employee, in order to encourage him to join his new employer and to build up the employee's loyalty over time.

In practice, the mechanism is as follows: the employee receives the full bonus upon arrival, but it is generally provided that if the employee resigns before a certain deadline, he or she will have to repay the bonus in proportion to the time not spent in the company.

The question raised was therefore the following : does the golden hello reimbursement clause infringe on the employee's fundamental freedom to work? 

The employee's reasoning, validated by the Paris Court of Appeal, was that this reimbursement clause had the effect of setting a cost to the resignation, and therefore infringed his freedom to resign.

The French Cour de Cassation (May 5, 2023, No. 21-25.136) overturned this argument, ruling that :

• The purpose of the welcome bonus was to secure the loyalty of the employee in order to ensure his long-term collaboration.

By referring to good faith and to article 1134 of the Civil Code (now articles 1103 and 1104 of the Civil Code), the Cour de Cassation implicitly indicates that the employee had agreed to the conditions of acquisition of this bonus, the purpose of which he knew.

• The welcome bonus is independent of the employee's remuneration, which is not affected by the resignation.

Consequently, and without infringing on the employee's fundamental rights, the employer can demand the reimbursement of the bonus in proportion to the time not spent in the company.

Conversely, it does not seem allowed to ask for the reimbursement of the entire golden hello if the employee resigns before the fixed deadline.

Intended to strengthen the protection of adult and underage Internet users but also of companies in the data market, this bill was introduced on May 10, 2023.

Firstly, it provides for adaptation of French law to the provisions of the European regulations adopted in this area in 2022 (Digital Services Act, Digital Markets Act and Data Governance Act), and anticipates certain provisions currently under discussion as part of the new draft regulation on data (Data Act). 

Among the additional measures proposed, the following can be highlighted:

•   the introduction of a cybersecurity filter to prevent fraudulent access to personal or bank details;

•   the attribution of a normative power and a power of intervention to the French Audio-visual and Digital Communication Regulatory Authority (ARCOM) concerning checks on minors' access to pornographic content;

•   the possibility of temporarily suspending an account on an online platform service for the perpetrators of certain offences, including cyber-harassment and apology for acts of terrorism;

•   the facilitation of interoperability between different cloud computing services and the financial penalties that can be imposed by the French agency in charge of regulating telecommunications, postal services and print media distribution (ARCEP); and

•   the fight against foreign interference and online disinformation.

In addition, the government plans to create a supervisory authority at the French Supreme Courts (Cour de Cassation and Conseil d’Etat) for the processing of personal data by the judicial and administrative courts.

Finally, the government will be empowered to take measures by ordinance to supervise, regulate and control games incorporating monetisable digital objects (games incorporating technologies such as blockchain and NFT). On this point, in its opinion issued on 27 April, the Conseil d’Etat considers that in this case “the provisions relating to the definition of the category of “games with monetisable digital objects” cannot be retained”.

Newcomer to the Guillemin Flichy team, Jan-Baudouin Lallemand joins our Probity team to assist our clients on their issues of governance, compliance and civil and criminal liability.

The core business of our Probity team ? Legal and judicial management of reputational risk.

#governance #compliance #penal #leaders #internalinvestigations #dutyvigilance #sanctions

Welcome Beaudouin !

On 25 April, the European Parliament's Legal Affairs Committee (JURI) adopted its position on the proposal for a directive on corporate sustainability due diligence.

On 23 February 2022, the European Commission submitted to the Parliament and the Council a proposal for a directive on corporate sustainability due diligence. The aim of this proposal is to oblige certain companies to integrate human rights and environmental impact into their governance.

The European Parliament's Committee on Legal Affairs (JURI) was entrusted with the supervision and direction of the parliamentary work of the various committees with shared competence on this proposal.

On 25 April 2023, the JURI Committee announced in a press release that it adopted a common position on the directive proposal.

In committee, Members of the European Parliament (MEPs) – among other things – extended the scope of the companies covered by the directive. Indeed, MEPs want “EU-based companies with more than 250 employees and a worldwide turnover higher than 40 million euro, as well as parent companies over 500 employees and a worldwide turnover higher than 150 million euro”, as well as “non-EU companies with a turnover higher than 150 million euro if at least 40 million was generated in the EU" to be covered by the directive.

By way of comparison, the French “devoir de vigilance” only applies to companies with more than 5,000 employees in France or 10,000 employees worldwide.

The position adopted by the JURI Committee still needs to be approved at the plenary session of the Parliament, which is expected to take place on 1 June.

Once the position is adopted in plenary, negotiations with the Council on the final text of the directive will start.

On 19 April, the European Parliament announced the adoption of a new regulation on the import of commodities and products associated with deforestation and forest degradation. 

This regulation aims to control the sale of the following products within the European Union (EU): cattle, cocoa, coffee, palm oil and its derivatives, soya and wood, rubber, charcoal and printed paper products. Are also cover by this regulation, products that contain or have been made from these raw materials, such as leather, chocolate and furniture.

Under this regulation, companies will only be allowed to sell products in the EU if the supplier of the product issued a “due diligence” statement confirming that the product is not associated with deforestation and/or forest degradation.

Companies will also have to ensure that products comply with the laws of the country of production, notably on human rights and rights of indigenous people.

The Commission will rank producing countries by risks level (low-, standard- or high-risk) which will determine the level of due diligence that companies will have to perform.

According to the European Parliament’s press release, the maximum fine in case of violation of the regulation must be at least 4% of the total annual EU turnover of the non-compliant company.

The regulation still must be formally endorsed by the Council before being published in the EU Official Journal. It will enter into force 20 days after its publication.

The presumption of resignation of an absent employee, or how to make the employers bear a responsibility that should not be theirs.  

Depending on the employer's assessment of the justification of the absence, an employee may be deprived of unemployment benefits. Is this really an employer's responsibility? Our first thoughts on this new procedure 

Article L. 1237-1-1 of the French Labor Code has established a new principle: an employee who abandons their position and does not come back or does not justify their absence despite a formal notice from their employer is presumed to have resigned and will therefore be deprived of unemployment benefits.

The terms of implementation of this presumption were specified in a decree dated April 17, 2023:

•   The employer must give notice to the employee to return to their position or to justify their absence, by registered letter with acknowledgement of receipt or by letter delivered by hand ; 

•  At the end of a minimum period of 15 days from the notification of the formal notice, if the employee has not justified their absence, they will be presumed to have resigned.

From a purely practical point of view, one may wonder how an employer would be able to hand-deliver to an absent employee a letter of formal notice to return to work.

On substance, most employees will refuse the principle of a resignation, which would cause them to lose the right to unemployment compensation, and will justify their absence in one way or another.

It will then be up to the employer to decide whether or not it is a resignation, a decision that will have serious consequences for the employees.

Let's admit that it was more reassuring for the employer to proceed with a dismissal for serious misconduct or for simple misconduct and, in the latter case, not to pay the employee during his notice period, on the grounds that they were unjustifiably absent.

In this case, the employer was not responsible for seeing the employee deprived of unemployment compensation. 

The question arises as to which compensation the employer will be liable for if they presume an unjustified or even abusive resignation. What will the employee be entitled to, a backpayment of unemployment compensation, damages for dismissal without real and serious cause, or separate damages ? 

Is the administration not insidiously transferring its responsibility to identify employees who try to circumvent the conditions of unemployment compensation ?

This reform places the responsibility on employers - or any human resources team - to decide that an employee will be deprived of unemployment benefits and therefore potentially of any resources, because of an absence. Is this really its role ?

On the other hand, is it wise to give employers the prerogative of being able to deprive an employee of all unemployment benefits on the grounds that they consider the employee's absence to be a resignation ?

The employee would then be obliged to urgently refer the matter to the Employment tribunal in a context where they will be without resources, with the fear that in case of recognition of a resignation, he may be liable to the employer for their notice period. 

The administration should have, at the very least, set a limit to the possible justifications of the absence of the employee, in order to protect both employers and employees.

In any event, these questions lead us to express the strongest reservations about the merits of this reform.

A few days ago, a video posted on twitter reproduced the voice of the famous rapper Jay-Z with the help of an artificial intelligence, suggesting that the rapper had just released a new song, almost 5 years after his last album. 

Fans' hopes were short-lived. The track, whose lyrics and arrangement were created by a French DJ duo, had a vocal imitation filter applied.

Back in February, DJ David Guetta decided to imitate Eminem's voice for a verse. 

This raises the question of the appropriation of vocal identity by artificial intelligence technologies.

Under French law, the “droit à la voix”, as an attribute of the personality, is protected on the basis of Article 9 of the French Civil Code. As early as 1975, the Paris first instance Court sanctioned the use of an actor's verbal characteristics in an advertising spot.

More recently, the CNIL recalled in its white paper on voice assistants that the voice is a "personal data which, depending on the use made of it, has a variable geometry".

The voice, even if it is widely known to the general public, is therefore protected. Consequently, the use of voice data by artificial intelligence systems without the prior authorisation of the person whose voice is reproduced is objectionable

Le 8 mars, l’Agence Française Anticorruption (AFA) a publié un recueil de fiches pratiques sur les bases d’information publiques utiles à l’évaluation de l’intégrité des tiers.

L’évaluation de l’intégrité des tiers est l’un des huit piliers du dispositif anticorruption prévu à l’article 17 de la loi n° 2016-1691 du 9 décembre 2016 relative à la transparence, à la lutte contre la corruption et à la modernisation de la vie économique (Loi Sapin II).

En introduction de son recueil, l’AFA rappelle que les sociétés assujetties à la Loi Sapin II peuvent évaluer l’intégrité de leurs tiers de plusieurs manières, et notamment en procédant à la collecte et à l’analyse d’informations disponibles sur des bases d’information librement accessibles.

Le recueil publié par l’AFA vise :

• à établir une liste non exhaustive de ces bases d’information publiques et ;

• à préciser les utilisations possibles de celles-ci dans l’exercice d’évaluation de l’intégrité des tiers.

Le 14 mars, l’AFA et le Parquet National Financier (PNF) ont publié un guide pratique relatif aux enquêtes internes anticorruption.

Ce guide pratique vise à accompagner les organisations – assujetties ou non à la Loi Sapin II – sur la conception et la mise en œuvre de leur dispositif d’enquête interne anticorruption dans le respect des droits et libertés individuelles.

Il décrit, étape par étape, le déroulement d’une enquête interne : de ses faits générateurs, aux conditions et aux modalités de sa réalisation, jusqu’aux suites à y donner et aux conséquences à en tirer.

Il y est précisé en introduction que l’enquête interne anticorruption étant l’une des suites à donner au dispositif d’alerte interne prévu par l’article 17 de la Loi Sapin II, elle doit être considérée comme faisant « partie intégrante du dispositif anticorruption ».

Ce guide donne de nombreux conseils pratiques dans la conduite d’une enquête interne, comme le fait de formaliser, en amont, une procédure d’enquête interne.

Ce guide, co-écrit par l’AFA et le PNF, s’inscrit dans un contexte :

• de renforcement du cadre juridique en matière de recueil des signalements et de protection des lanceurs d’alertes et ;

• de développement de la justice négociée, dans le cadre de laquelle une coopération forte des organisations avec les autorités de poursuite est attendue, pouvant se matérialiser par la conduite d’une enquête interne loyale et structurée.

Our IP-IT team has once again greatly distinguished!

"Excellent" for "Industrial Property - Trademarks, Litigation" | “Highly Recommended" for "Innovation, Technologies & Telecoms - Personal Data Law" & "Renowned Practice" in the category "Innovation, Technologies & Telecoms - IT, Software & Digital Projects".

 Thanks to all our clients for their unwavering trust.

Alexis Guillemin

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