The social alert right is one of the alert rights available to the Social and Economic Committee pursuant to Articles L. 2312-59 et seq. of the Labor Code. The contours of this mechanism, which remains largely unknown, deserve to be examined.

Framework. – The open-ended contract is the standard employment contract. It is “the normal and general form of the employment relationship” (Labor Code, art. L. 1221-2). It is therefore only by way of exception that the conclusion of so-called “precarious” contracts is permitted. The Labor Code strictly regulates their validity. The regime governing fixed-term employment contracts is thus set by Articles L. 1241-1 et seq. of the Labor Code, while that governing temporary employment contracts and other assignment and umbrella company contracts is governed by Articles L. 1251-1 et seq. of the Labor Code.

From individual relations to collective relations. – Challenges to the employer’s use of precarious contracts are most often considered in the context of individual employment relations. In the event of a challenge, the employees concerned may seek judicial reclassification of their precarious contract into an open-ended contract. Nevertheless, the legislature wished to strengthen the role of employee representative bodies “in monitoring the company’s use of precarious contracts” (DRT Circular 2002-08, May 2, 2002). It was within this logic that the social alert right was introduced by Law No. 2002-73 of January 17, 2002 on social modernization.

Sources. – The regime governing the social alert right is codified in Articles L. 2312-70 and L. 2312-71 of the Labor Code. In the absence of case law, many uncertainties remain as to the conditions and methods of application of these provisions, despite the clarifications provided by DRT Circular No. 2002-08 of May 2, 2002.

Social and Economic Committee (CSE). – The initiation of the social alert procedure is reserved to the Social and Economic Committee established in companies with at least 50 employees. In companies with a complex structure, the scope to which the employees holding the precarious contracts concerned are attached determines whether the central CSE or the establishment CSE has jurisdiction to initiate the social alert procedure (Labor Code, art. L. 2316-20).

Duality. – Two social alert procedures coexist: one involving referral to the employer (1), the other to the labor inspectorate (2). No articulation is organized between them by the Labor Code. Where the situation falls within the scope of both procedures, the Social and Economic Committee therefore appears entitled to initiate them alternately or successively, or even concurrently. In view of their respective regimes, however, logic would suggest that the Social and Economic Committee first initiates the first procedure before considering referral to the labor inspectorate.

Referral to the employer

Regime. – Subject to certain conditions (A), referral to the employer by the Social and Economic Committee under the social alert right enables implementation of the procedure referred to in Article L. 2312-70 of the Labor Code (B).

1. Conditions

Substance and form. – The initiation of the social alert procedure by the Social and Economic Committee requires that substantive conditions (1°) and formal conditions (2°) be met.

1° Substance

Increase in the number of precarious contracts. – Article L. 2312-70 of the Labor Code authorizes the Social and Economic Committee to refer the matter to the employer if it notes, on the basis of the information available to it (a), that the number of fixed-term contracts and assignment contracts entered into in the company has significantly increased (b).

1. a) Information

Consultation. – The implementation of any specific project involving the use of precarious contracts may lead the employer, where an information and consultation procedure is initiated, to provide the Social and Economic Committee with information relating to the conclusion of such contracts. Consultation of the body is required in particular in the following cases:

• use of a fixed-term or assignment employment contract in the event of the permanent departure of an employee before the elimination of his or her position (Labor Code, arts. L. 1242-2 and L. 1251-6);
• use of a fixed-term or assignment employment contract with a duration of 24 months where that duration, in principle limited to 18 months, is justified by the occurrence within the company, “whether that of the main contractor or that of a subcontractor, [of] an exceptional export order whose importance requires the implementation of means quantitatively or qualitatively exceeding those ordinarily used by the company” (Labor Code, arts. L. 1242-8-1 and L. 1251-12-1);
• use of a fixed-term or assignment employment contract within the 6 months following an economic dismissal, where such use, in principle prohibited, is justified by the same circumstance as that previously mentioned (Labor Code, arts. L. 1242-5 and L. 1251-9).

But it is mainly on the occasion of the mandatory periodic consultation relating to the company’s social policy, working conditions and employment that the committee is intended to receive quantitative data relating to precarious contracts entered into by the company.

BDESE. – In practice, this information appears in the economic, social and environmental database. Its content is determined by collective agreement or, failing that, by the fallback provisions laid down by Article L. 2312-36 of the Labor Code.

Under these provisions, in companies with fewer than 300 employees, the BDESE must in particular contain the following information:

• the number of employees holding an open-ended employment contract;
• the number of employees holding a fixed-term employment contract;
• the number of temporary employees;
• the number of employees belonging to an outside company;
• the number of working days performed during the last 12 months by temporary employees;
• the number of insertion and apprenticeship/training contracts open to persons under 26 years of age;
• the reasons that led the company to use fixed-term employment contracts, temporary employment contracts, part-time employment contracts, as well as employees belonging to an outside company.

In companies with at least 300 employees, more information is required:

• the number of employees holding a fixed-term employment contract on December 31;
• the number of employees belonging to an outside company;
• the monthly average number of temporary employees;
• the average duration of temporary employment contracts;
• the number of seconded employees of the company;
• the number of seconded employees received;
• the number of hires under fixed-term employment contracts, specifying the number of seasonal worker contracts;
• the number of terminations of fixed-term employment contracts;
• the number of apprenticeship contracts entered into during the year;
• quantitative data by sex, specifying the distribution by occupational category according to the different employment contracts (open-ended or fixed-term);
• quantitative data by sex, specifying the distribution of hires by occupational category and type of employment contract.

Frequency. – The frequency of the consultation relating to the company’s social policy, working conditions and employment is in principle annual but may be modified by agreement, as may its content, methods and the list and content of the necessary information. Such modification is normally based on a company collective agreement; in the absence of union delegates, it may nevertheless be made by an agreement concluded by the head of the company with the Social and Economic Committee, approved by the majority of the incumbent employee representatives who are members of that body (Labor Code, art. L. 2312-19).

Independently of the frequency adopted for that consultation, and unless otherwise provided by agreement, the employer is required to communicate every quarter to the Social and Economic Committee information relating to workforce developments and employee qualifications, specifying in particular the types of contracts entered into (Labor Code, arts. L. 2312-69 and R. 2312-20). This obligation applies only to companies with at least 300 employees.

Employer’s failure. – Where the BDESE is incomplete, employee representatives may refer the matter to the President of the Judicial Court ruling under the accelerated procedure on the merits referred to in Article L. 2312-15 of the Labor Code, so that he may order the employer to communicate the missing elements (Cass. soc., Nov. 24, 2021, No. 20-13.904: JurisData No. 2021-018699; JCP S 2022, 1029, note S. Guedes da Costa). In any event, where the Social and Economic Committee does not have access to the aforementioned information, it would appear that it may exercise its social alert right without having to establish the existence of a significant increase in the number of precarious contracts.

Expert appraisal. – In the context of the consultation on the company’s social policy, working conditions and employment, the Social and Economic Committee may decide to call on an expert (Labor Code, art. L. 2315-91), whose fees are borne entirely by the employer (Labor Code, art. L. 2315-80). The work of that expert may in particular concern the use of precarious contracts within the company.

1. b) Finding

Contracts concerned. – Article L. 2312-70 of the Labor Code refers only to employees holding a fixed-term employment contract and temporary employees. Only an increase in the number of holders of at least one of these two types of contract may therefore give rise to initiation of the procedure referred to in that same article.

Assessment. – Under Article L. 2312-70 of the Labor Code, the Social and Economic Committee may resort to the social alert right as soon as a significant increase in the number of precarious contracts entered into is found in comparison with the situation existing at the time of the previous meeting of the body “having addressed this subject,” which may prove to be the last consultation meeting relating to the company’s social policy, working conditions and employment. It appears from this wording that reference should be made to the last meeting during which the issue of the number of precarious contracts was explicitly addressed in the discussions. It is nevertheless doubtful that, in the absence of such prior discussion, the Social and Economic Committee could be deprived of the possibility of exercising the alert right under the aforementioned Article L. 2312-70.

Significance of the increase. – The notion of a “significant increase” is not defined by the texts or by case law. DRT Circular 2002/08 of May 2, 2002 adopts a broad reading of it by considering that “the notion of significant increase is assessed by reference to the number of contracts entered into during previous months, during the same period in previous years, or by reference to any other criterion that the committee […] considers relevant, having regard, for example, to the company’s level of activity, or to its seasonal nature.” The Social and Economic Committee therefore appears entitled to initiate the alert procedure whenever an increase in the number of precarious contracts is found, subject to abuse of rights.

Irrelevance of validity. – Article L. 2312-70 of the Labor Code refers to the number of contracts entered into and not to their validity. The finding of a significant increase in the number of fixed-term contracts and assignments entered into is therefore sufficient to justify referral to the employer even if it is established that the contracts were entered into and performed in accordance with applicable law. Likewise, the finding by the Social and Economic Committee that all or part of the precarious contracts entered into within the company are unlawful does not, having regard to the wording of the text, permit initiation of the procedure under Article L. 2312-70 of the Labor Code unless a significant increase in their number is established.

Failure to comply with formal conditions. – The wording of Article L. 2312-70 of the Labor Code suggests that the significant increase in the number of precarious contracts entered into must be demonstrated by the Social and Economic Committee, on which the burden of proof would therefore rest, for the body validly to initiate the procedure provided for in the same article. An interpretation a contrario of Article L. 2312-71 reinforces this analysis insofar as it authorizes the Social and Economic Committee to refer the matter to the labor inspector when it “becomes aware of facts likely to characterize abusive use” of precarious contracts, that reference to mere “suspicion” not having been retained by the legislature in drafting Article L. 2312-70 of the Labor Code.

Conversely, it could be considered that the obligation imposed on the employer, after being referred to by the Social and Economic Committee, to communicate details relating in particular to the number of contracts entered into amounts to admitting that the body does not necessarily have this information at the stage when the procedure is initiated. Moreover, insofar as the content of the BDESE may be adjusted by agreement, the agreement in question may deprive the Social and Economic Committee of any access to quantitative information relating to precarious contracts, with the result that the body would then no longer be materially in a position to establish the increase in their number. Now, to prohibit the latter from exercising any possibility of exercising its social alert right in such a situation appears contrary to the spirit of the text. In any event, even where the BDESE contains information relating to precarious contracts, it is populated on this subject, in companies with fewer than 300 employees, only on the occasion of the consultation relating to the company’s social policy, working conditions and employment, i.e. at most on an annual basis. Unless the employer has communicated other information in the meantime, it is only on that occasion that the body is placed in a position to establish the existence of an increase in the use of precarious contracts, which limits in time the possibility available to it to exercise the social alert right. Here again, it is doubtful that such a restriction is consistent with the legislature’s intention. The uncertainty nevertheless remains complete in view of the imprecision of the texts and the absence of case law on this point.

Opportunity. – This theoretical debate nevertheless has limited practical significance, since an employer who considered that the reality or extent of the increase alleged by the Social and Economic Committee had not been established would have little interest in opposing the initiation of the social alert procedure, in particular by judicially challenging the possible resolution adopted to that effect by the body. Indeed, the procedure under Article L. 2312-71 of the Labor Code is relatively not very burdensome for the employer insofar as it requires it only to communicate certain information to employee representatives. But above all, in the event of opposition on its part, the employer would expose itself, beyond a conviction on the ground of obstruction and compensation for the damage suffered by the body, to the Social and Economic Committee referring the matter directly to the labor inspector under the aforementioned Article L. 2312-71, the wording of which is less demanding in evidentiary terms.

2° Form

Request. – The exercise of the social alert right implies that the members of the Social and Economic Committee expressly formulate the request. Thus, under Article L. 2312-70 of the Labor Code, where the committee finds that the number of employees holding a fixed-term employment contract or temporary employees has significantly increased, it is only if the majority of its members so request that “consideration of this issue is automatically placed on the agenda of the next ordinary meeting” of the body.

Formalism. – The conditions for expressing this request are not governed by the texts. In practice, it may take the form of a resolution adopted during a meeting of the Social and Economic Committee or a written document addressed to the chairman of the committee and signed by the majority of its members.

Moreover, the Social and Economic Committee must formulate, in its request for the meeting to be convened, the question or questions that it wishes to have placed on the agenda of the next meeting of the body (Labor Code, art. L. 2315-31).

Notion of majority of members. – By analogy with the position adopted by the Court of Cassation concerning the application of former Article L. 2325-14 of the Labor Code, it should be considered that the majority of the members of the Social and Economic Committee “means the majority of the elected members having voting rights” (Cass. soc., Feb. 13, 2019, No. 17-27.889: JurisData No. 2019-001964; JCP S 2019, 1099, note Y. Pagnerre; BJT 2019, No. 4, p. 18, note G. Auzero; RJS 2019, No. 228), which excludes in particular alternate elected representatives and union representatives.

Resolution adopted at a meeting. – In view of the foregoing, where the request is formalized by a deliberation adopted during a meeting of the Social and Economic Committee, the majority must be assessed by taking into account all the incumbent members of the body and not only those present at the meeting, by way of derogation from the principle laid down by Article L. 2315-32 of the Labor Code. Furthermore, insofar as the decision of the Social and Economic Committee to initiate the social alert procedure falls within a vote by the elected employee delegation alone, the chairman of the committee does not take part in it.

1. Procedure

CSE meeting. – The implementation of the social alert procedure results in the automatic placing of the Social and Economic Committee’s request on the agenda (1°) of the next ordinary meeting of the body (2°).

1° Placing on the agenda

Conditions for placing on the agenda. – The item relating to the social alert right is automatically placed on the agenda of the next meeting of the Social and Economic Committee. This automatic placing on the agenda means that, by way of derogation from the principle according to which the agenda is jointly established by the employer and the secretary (Labor Code, art. L. 2315-29), one of them may place it there unilaterally. This possibility does not, however, exempt the parties from seeking agreement on the agenda (Cass. soc., July 12, 2010, No. 08-40.821: JurisData No. 2010-011675; Bull. civ. V, No. 169; JCP S 2010, 1419, note F. Dumont; RJS 2010, No. 736). Before the automatic insertion is implemented unilaterally by the chairman of the committee or by the secretary, one of them must therefore propose a meeting with a view to joint determination (DGEFP-DRT Circular 2005/47, Dec. 30, 2005).

Ordinary meeting. – The item relating to the exercise of the social alert right is placed on the agenda of the next ordinary meeting of the Social and Economic Committee. The organization of an extraordinary meeting is not required.

Question. – If the body has attached questions to its request for the meeting of the body, those questions are placed on the agenda of the meeting (Labor Code, art. L. 2315-31).

2° Conduct of the meeting

Communication. – At the meeting on whose agenda the item relating to the social alert right has been placed, the employer is required to communicate to the Social and Economic Committee:

• the number of employees holding a fixed-term employment contract and temporary employees;
• the reasons that led it to use them;
• the number of working days performed by the persons concerned since the last communication made on this subject.

Discussion. – While Article L. 2312-70 of the Labor Code merely requires it to communicate the aforementioned information, the employer can hardly dispense, during the Social and Economic Committee meeting, with presenting arguments in support of the validity of the precarious contracts entered into by the company and of the legitimacy of the use of this type of contract, if only with the objective of convincing employee representatives not to refer the matter to the labor inspector under Article L. 2312-71 of the same code.

End. – In view of the wording of Article L. 2312-70 of the Labor Code, the social alert procedure ends as soon as the employer has communicated the aforementioned information to the Social and Economic Committee. No formal requirement is necessary to record its end. Particular vigilance is therefore required in the drafting of the minutes of the meeting. Their content must enable the employer to demonstrate that it has complied with the obligations imposed on it by Article L. 2312-71.

Referral to the labor inspectorate

Regime. – As soon as the conditions referred to in Article L. 2312-71 of the Labor Code are met (A), the Social and Economic Committee is entitled to initiate the social alert procedure before the labor inspectorate’s enforcement officer (B).

1. Conditions

Substance and form. – Referral to the labor inspectorate by the Social and Economic Committee is subject to substantive conditions (1°) and formal conditions (2°).

1° Substance

Situations covered. – Article L. 2312-71 of the Labor Code authorizes the Social and Economic Committee to exercise its social alert right before the labor inspectorate if it finds that the number of precarious contracts entered into by the company has significantly increased (a) or if it becomes aware of facts likely to characterize abusive use of this type of contract (b).

1. a) Significant increase

Mimicry. – The Social and Economic Committee is entitled to refer the matter to the labor inspectorate if it finds a significant increase in the number of fixed-term contracts entered into by the company or of supply contracts entered into by it with temporary employment agencies. Such an increase is capable of justifying both initiation of the social alert procedure referred to in Article L. 2312-70 of the Labor Code and that under Article L. 2312-71.

Distinction. – The wording of the foregoing provisions is not, however, identical on this point. Article L. 2312-71 does not specify the conditions for assessing the existence of an increase in the number of precarious contracts, whereas Article L. 2312-70 refers to “the situation existing at the time of the last meeting of the Social and Economic Committee having addressed this subject.” The burden of proof, which rests on the Social and Economic Committee, is thereby lightened.

1. b) Abusive use

Abusive use. – Referral to the labor inspectorate’s enforcement officer is also open to the Social and Economic Committee when it becomes aware of facts likely to characterize abusive use by the company of precarious contracts.

Suspicion. – In view of the wording of Article L. 2312-71 of the Labor Code, mere suspicion of abusive use of precarious contracts is sufficient to justify initiation of the social alert procedure. The Social and Economic Committee may therefore simply report a body of indicators when referring the matter to the labor inspectorate.

Notion. – The notion of “abusive use” is the subject of no legal or case-law definition. DRT Circular 2002/08 of May 2, 2002 nevertheless invites it to be assessed broadly. It states that “the legislature intended to adopt a notion broader than that of an offense or illegal or unlawful use of fixed-term contracts or temporary employment contracts. It is not for the committee […] necessarily to characterize an offense but rather to have an alert procedure before the labor inspector in new situations. This notion of abusive use of precarious labor must be linked to the terms [of Articles L. 1242-1 and L. 1251-5 of the Labor Code], which prohibit the conclusion of precarious contracts in order to fill on a lasting basis a job linked to the company’s normal and permanent activity. Indeed, the main criticism in relation to the development of precariousness concerns the existence of a large and stable percentage of precarious workers in certain companies, to the point that the contradiction between this workforce management practice and the notion of a temporary increase in activity, which is supposed to justify the use of precarious contracts, leads to the thought that the company has decided to resort structurally to this form of external flexibility. It is in this type of situation that the new right entrusted to the [Social and Economic Committee] takes on its full meaning.”

Contracts covered. – Article L. 2312-71 authorizes initiation of the social alert procedure in the event of abusive use of fixed-term employment contracts, temporary work, but also contracts entered into with an umbrella company. As regards this latter type of contract, only abusive use of their conclusion may therefore justify the Social and Economic Committee’s exercise of its social alert right, to the exclusion of an increase in their number.

2° Form

Resolution. – The decision to refer the matter to the labor inspectorate results from a resolution adopted by a majority of the members present at the Social and Economic Committee, under the ordinary conditions laid down by Article L. 2315-32 of the Labor Code (DRT Circular 2002-08, May 2, 2002).

Letter. – Once this resolution has been adopted, the committee must refer the matter to the labor inspectorate. This referral may take the form of a letter setting out the alleged situation of a significant increase in the number of precarious contracts or of abusive use of their conclusion. The minutes of the meeting during which the resolution was adopted must be attached to it. If the labor inspector attends that meeting, however, it appears that he may validly consider himself seized without the committee having to send him correspondence to that effect.

1. Procedure

Investigations. – Using the powers legally vested in it, the labor inspectorate’s enforcement officer carries out all findings that it considers useful to assess the validity of the precarious contracts entered into by the company. For this purpose, it may carry out an investigation at the workplace, request clarifications from the head of the company, or examine the conditions of use of precarious labor, in particular in light of the monthly statements drawn up by temporary employment agencies or the personnel entry and exit register, without limiting itself to the finding of any criminal offenses (DRT Circular 2002-08, May 2, 2002). More generally, it may request the production of all books, registers and documents made mandatory by the Labor Code or by a legal provision relating to labor rules (Labor Code, art. L. 8113-4).

Report. – If the labor inspectorate’s enforcement officer considers, in view of its investigation, that the use of precarious contracts is not in conformity with Articles L. 1242-1 and L. 1251-5 of the Labor Code: 1°) it sends the employer a report establishing that finding; 2°) it asks the employer to draw up a plan to reduce precariousness intended to limit recourse to those contracts (Labor Code, art. L. 2312-71).

Response. – Upon receipt of the report, the employer is required to send a reasoned response to the labor inspectorate. In it, it specifies, where necessary, the means it intends to implement in order to reduce precariousness.

Information of the Social and Economic Committee. – The employer is required to communicate to the Social and Economic Committee both the labor inspectorate report and the reasoned response it has given to it.

Content of the plan to reduce precariousness. – DRT Circular 2002/08 of May 2, 2002 states that “the law did not set the deadlines within which the employer must draw up [the plan to reduce precariousness], nor its duration of implementation, because these elements naturally depend on the particular situation of each company. […] It should be noted that, at the end of the discussion that will take place with employee representatives, the employer will remain in control of the content of the plan it implements. Nevertheless, the failure to draw up a plan, or even its insufficiency in light of the labor inspector’s findings, would be capable of grounding an action by the [Social and Economic Committee] before the court.” The admissibility of such referral to the court, which is not contemplated by Article L. 2312-71 of the Labor Code, nevertheless appears doubtful insofar as the Social and Economic Committee has neither standing to represent the individual interests of employees nor standing to represent the collective interests of the profession.

Official report. – The initiation of the social alert procedure does not constitute a prerequisite for the initiation of criminal proceedings (DRT Circular 2002-08, May 2, 2002). In addition to the report communicated to the employer, the labor inspectorate’s enforcement officer may therefore validly draw up an official report recording the identified offenses and transmit it to the Public Prosecutor.

Criminal penalties. – The criminal penalties associated with violation of the legal provisions relating to fixed-term employment contracts, temporary agency work and umbrella company arrangements are provided in particular by Articles L. 1248-1 et seq., L. 1255-1 et seq. and L. 1255-14 et seq. of the Labor Code.

Texts: Labor Code, arts. L. 2312-59, L. 2312-70 and L. 2312-71
JurisClasseur: Employment Treatise, fasc. 14-3, by Jean-Yves Kerbourc’h
Other LexisNexis publications: Lexis Pratique Social, fasc. S-2505