Employment issues for individual employers

Any private individual becomes an employer once they hire cleaning, childcare, sick care, gardening or administrative assistance staff, and must therefore be confronted with various issues that evolve over the course of employment.

The purpose of employment will define the conditions under which it should be carried out, but also how the working relationship should be developed and how to deal with the termination of the employment if the need arises.

Individuals and their advisers will need to consider the pitfalls and responsibilities associated with employing household staff in order to choose the most appropriate structure. Our Employment Law Team has identified some of the key issues to be considered (in a non-exhaustive manner).

At the hiring stage:   

• Who should take the role of the employer?
  The employer should be identified according to the degree of involvement and responsibility the individual wishes to have. If necessary, the most suitable third party hiring structure should be put in place.

• What type of contract should be concluded?
  Open-ended contract, fixed-term contract, or temporary work contract (and other options) should be considered depending on the type and duration of the tasks to be carried out.

• How to secure the necessary procedures prior to hiring?
  Affiliation with social organizations, hiring formalities, medical obligations: all of these are time-consuming steps and formalities to take into account and carry out in a timely matter in order to assure that the household staff can start without unnecessary delay.

At the contract execution stage:

• How to manage the risk of confidential information breach?
  Employment contracts and confidentiality agreements need to be considered, especially given the sensitivity of the information the staff might have access to.

• How to organize paid leave?
  A specific procedure for paid leave should be put in place, especially for individual employers, whose needs may vary and are less predictable than those of corporate employers.

• How should nighttime work be organized (in case of an employee looking after a child / dependent person)?
  Night-shift work raises the question of overtime payment or on-call duty, which should be anticipated and structured in the work contract.

• Can domestic staff be made to work in shifts, including weekends and public holidays?
  Working at weekends and/or on public holidays can be organized under certain conditions, taking into account the questions of rest and overtime.

• How to manage sick leave, maternity leave or accidents at work?
  The various obligations - declaration formalities and compensation schemes – which, once neglected, may engage the employer's liability with regard to the employees but also with regard to the competent administrations - must be managed with extra care given the legal and reputational stakes.

At the stage of termination of the contract:

• How and when terminate the contract ?
  Which motive to consider (or even decide not to state one by referring to article 6 of law n°729), when to dismiss, what formalities must be followed in the implementation – all of the above must respond to an individual analysis in order to choose and implement the most adequate solution to the employer's situation and possible risks. Too often employers are condemned by employment courts for failing to comply with legal obligations of which they were unaware in the first place, or even for failing to comply with requirements established by case law, which only legal professionals can bring to their attention.   

• Should the employee be exempted from work after dismissal?
  Unless the employee is guilty of serious misconduct and is deprived of notice, the individual employer may choose to have the employees work or exempt them from work during the notice period, although certain precautions must be taken beforehand, as this might be considered abusive.

• What indemnities must be paid on termination of employment?
  Drawing up the final account and identifying the sums payable (and those that are deductible where applicable) presents risks for the employer, which can be minimized by seeking professional advice prior to termination.

• What risks are associated with dismissals?
  The financial risks incurred by the employer (in terms of compensation for damage caused, over and above the legal termination indemnities) are sometimes associated with risks of a criminal nature, and in any event, reputational risks.