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I have been contracted to provide virtual IT consulting to a French company. I'm a US citizen, and work under a US corporation as the sole employee and use a payroll service to pay myself. The "end-client" is French, and has enlisted a third-party, French company to pay my company for my work. The term is for 6 months.

I'm being asked to provide a "list of posted workers subject to work permit".

The work permit site references physical presence in France (which I won't be).

Would I be required to garner a work permit for this work?

Cris D
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2 Answers2

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A posted worker would be someone your company sends to France to complete the work. In that case, for a 6-month contract, you would need a residence permit or long-stay visa (which implicitly gives you the permission to work) and I think that's what you are being asked about. As long as you are physically in the US, you don't need that.

If you need to come to France for less than 90 days, you cannot apply for a long-stay visa (in fact, as a US citizen, you don't need a visa at all). Instead, you would apply for a separate autorisation de travail. There is an exemption from this requirement for “audits and expertise in IT, management, finance, insurance architecture, and engineering”. Again, if you are physically in the US, you don't need that.

Relaxed
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    Suppose someone in an arrangement like this (an Annex II national, like Cris D) intends to visit the client in France for some period of time shorter than 90 days. Is there some class of activity that would be impermissible as a business visitor? If so, where is the line between permissible business activities and impermissible employment, and is there some way to get permission to perform such an activity during a short visit? – phoog Apr 08 '21 at 14:29
  • @phoog Excellent question, thanks! Not sure where to draw the line between business and work but for the latter france-visas.gouv.fr suggests you do have to get an autorisation de travail. Confusingly, the title of the form refers to an employment contract (“pour conclure un contrat de travail”) but there is in fact a box for posted workers further down. There is also a general exemption from this requirement for IT consulting? I will try to correct my answer to better reflect all this. – Relaxed Apr 08 '21 at 14:40
  • Thanks a ton - makes a huge difference in how I sleep at night. . .cd – Cris D Apr 08 '21 at 18:44
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Short answer:

No.

Discussion:

Since you won't be in France, you won't be working in France. You therefore do not need permission to work in France.

Furthermore, as a contractor, the business relationship is between your corporation and the French company. That your corporation has a sole employee does not change the fact that you are employed by that corporation rather than the French company.

However, there is a caveat: all employment law that I am aware of defines "employee" so as to prevent employers from escaping legal requirements simply by paying their employees as contractors. In other words, the legal arrangement you describe is typically not sufficient to establish that you aren't an employee; other factors usually come into play such as the degree to which the client directs the working hours and conditions of the contractor. (In saying this, I don't have much specific knowledge of the relevant French law, but I do understand that it is similar to the law in other countries with which I am more familiar.)

In your case, the fact that you and your corporation are foreign probably strengthens the argument that you truly are a contractor. The fact that your personal income is received as an employee of the corporation may also have the same effect. Furthermore, modern employment law does not deal very well with remote cross-border employees. We occasionally get questions from people who want to work remotely for a foreign employer as an employee, and frankly that just doesn't seem to be possible: what employment law would apply? Which country's payroll tax system would apply? There just isn't a framework for this kind of relationship. The best way to do it seems in fact to be the arrangement you already have in place.

To reiterate, permission to work in France is only required if you're actually physically present in France when you do the work. Since you will not be, you do not require a French work permit.

phoog
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    (+1) French law is indeed very similar, a high degree of control over working conditions is called “lien de subordination” – Relaxed Apr 08 '21 at 14:57
  • Thanks so much - good to have ya'll watching our backs - let me know if I can ever return the favor (Cyber on ships. . .) – Cris D Apr 08 '21 at 18:43
  • If there is doubt whether the one-person company is just a fake construction to avoid proper employment, a second employee may help. A part-time cleaning person would do. In my experience there is always a need for one ;-). – Peter - Reinstate Monica Apr 09 '21 at 00:54
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    @Peter-ReinstateMonica That would not necessarily make a difference. In French law, the focus is really on the material nature of the relationship between the client and the person. For example, if an employee of a large service provider works for many years at the same client, effectively reports to them, etc. both the client and the provider can be found guilty of “prêt illicite de main d'œuvre” or “marchandage” and a court can decide that the client is the real employer (which can have consequences regarding which collective bargaining agreement applies, back pay, etc.) – Relaxed Apr 09 '21 at 04:58
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    For that reason many clients have an internal rule that a given employee from an outsourcing or IT consulting company cannot work on site for more than 2 or 3 years. After that they need to be rotated for someone else. – Relaxed Apr 09 '21 at 05:04
  • @Relaxed Same in Germany. But having a "real" company (with more employees) certainly favors being seen as, well, a real company. – Peter - Reinstate Monica Apr 09 '21 at 08:07