Posting foreign workers in the construction industry: best practices to secure your subcontracted worksites

The posting of workers regime, strictly regulated by the labor code, imposes heightened vigilance on both the foreign employer and the client company. Document checks, reporting obligations, and subcontractor oversight make risk management a central issue for social compliance.

Secondment, a strictly defined exceptional framework

Secondment refers to the situation in which an employer legally established abroad temporarily sends its employees to France to perform a specific task, while maintaining the employment relationship with them during this period. This mechanism assumes that the foreign company carries out a genuine, stable, and continuous activity in its country of establishment, and that it has not created a structure solely for the purpose of sending workers to France.

To be considered posted workers, foreign workers present on a worksite must normally work for their foreign employer, maintain their employment contract for the entire duration of the assignment, and be working in France on a temporary basis. The French Labor Code strictly regulates this situation and covers four main scenarios: provision of services, intra-group posting, use of temporary workers, and posting outside the scope of service provision.

In the construction industry, this distinction is essential. A seconded employee is not a local employee "made available" informally: he remains legally attached to his original employer, which requires precisely identifying the contractual chain, the reality of the foreign company's activity and the exact nature of the mission carried out in France.

Heavy obligations for the foreign employer

An employer established outside France who is going to post employees must complete several formalities before their work begins in France. First, they must submit a prior posting declaration to the labor inspectorate before the work commences. This declaration, required for each assignment, identifies the employees involved, the company employing them, and the conditions under which the work will be performed.

The employer must also appoint a representative in France responsible for liaising with the supervisory authorities and for keeping the required documents. In the event of an audit, the employer must be able to present, in French and with the amounts converted into euros, the documents relating to the status of the posted workers and the actual activities of the company abroad.

In addition to these obligations, there are specific requirements for the construction sector. Posted workers must, where applicable, hold a work permit and a construction industry card. On building and civil engineering sites, safety, accommodation, and worker information regulations must also be followed. Failure to comply with these obligations may result in administrative fines, suspension of services, or even criminal penalties for obstructing inspections.

The client's obligations: active and documented vigilance

The client cannot simply act as a contracting party. When using a foreign company that posts workers to France, it bears a specific duty of care that includes prior checks and even additional due diligence during the execution of the contract. This obligation is part of an effort to prevent illegal work and ensure the security of the subcontracting chain.

What needs to be done in practice

Before the start of the secondment, the client must therefore ensure that their contractor has fulfilled all required declaration formalities. In practice, they must request the acknowledgement of receipt of the prior declaration of secondment submitted via the relevant online service, as well as a sworn statement confirming payment of any administrative fines. This verification constitutes the minimum level of due diligence expected of the host company. Without these documents, the client cannot be considered to have met their obligation of due diligence.

This obligation also extends to the subcontractors of the co-contractor. In the building sector, where interventions are frequently organized in a cascading fashion, the project owner or client must pay attention to the entire chain of intervention, including direct and indirect subcontractors as well as, where applicable, temporary work agencies involved in the operation.

The duty of care does not end with the initial collection of documents. If the client has not obtained the required supporting documents, they must, within 48 hours of the start of the posting, submit a supplementary declaration to the labor inspectorate in the area where the service is being performed. The client must also take action when informed in writing by an inspector of a total or partial failure to pay the statutory or collectively agreed minimum wage owed to a posted worker. In such a case, they must immediately request that the relevant contractor rectify the situation. They must then ensure that the matter is rectified within 7 days and, failing that, terminate the service contract. Otherwise, their financial liability may be incurred, as they will be jointly and severally liable for the payment of wages, allowances, and social security contributions owed to the posted worker.

Information about the construction site

On construction and civil engineering sites, the client company plays a role in informing posted workers by ensuring that applicable rules are displayed. This display must cover the main social and safety rights applicable in France, in a language understandable to the workers. This obligation is often perceived as secondary, but it is essential, particularly when foreign workers are unaware of the extent of their rights or who to contact in case of difficulty.

Finally, the client must also comply with the standard obligations relating to the fight against illegal work which apply to French companies: attaching the service provider's posting declaration to the personnel register, ensuring that posted employees have a work permit or are in compliance with immigration law.

Ultimately, the client is required to maintain structured, traceable, and proactive vigilance. Their role is not limited to verifying the formal existence of a contract; they must ensure that the service is performed in accordance with the rules governing the posting of workers, otherwise they risk incurring administrative, financial, or even joint liability.

Secure before you suffer

In the construction industry, international subcontracting demands a high level of legal vigilance. For companies in this sector, prevention involves rigorous due diligence, precise contractual agreements, and continuous monitoring throughout the entire subcontracting chain. It is strongly recommended that companies anticipate this compliance aspect by integrating it into their projects from the initial contract negotiation phase with the subcontractor.

Opinion piece by Charlotte de Guigné - Co-head of the social law department at ORCOM (LinkedIn).