Employee and local elected official: what rights?

In a few days, the many French people who have applied as candidates for the municipal elections will know if they have obtained the precious key to their election, for some as mayor, for others as municipal councilors.

Most of them also pursue a professional activity from which they derive their income, which means they do not evade the obligations they must assume, inherent in the performance of their employment contract.

And this despite other constraints that will be imposed on them throughout the performance of their mandate in the service of their fellow citizens.

Their employers, aware of the benefit of having employees concerned with the common good in their workforce, are encouraged to allow them time to exercise their elective functions, without this having a cost for the company.

The legislator very recently updated (Law on Engagement and Proximity of December 27, 2019) the provisions relating to the status of local elected officials, mayors, deputies, and municipal council members, which allow for better reconciliation between local mandate and professional life, in order to promote and encourage citizen engagement in local political life.

The resources granted to employees who apply for or are elected to a local mandate have thus been significantly increased (1) and specific protective measures have been put in place (2), which must be known by their employers.

1.     The means granted to candidates or elected officials for a local mandate

The legislator has decided to extend the authorized absences for employees during an electoral campaign (1.1) and to increase the time credit they benefit from once elected (1.2.).

1.1. Leave of absence for electoral campaign

Previously, only candidates for the European Parliament, municipal councils of communes with at least 1,000 inhabitants, departmental councils, or regional councils benefited from an authorized absence of 10 working days to participate in the electoral campaign (Article L. 3142-79 of the Labor Code).

The law of December 27, 2019 expanded the conditions for benefiting from this leave: now all candidates for municipal council, regardless of the size of the municipality, are entitled to this 10-day leave authorization.

This leave of absence may be requested by the employee at his or her convenience, in minimum half-day increments, provided that the company is notified with a notice period of 24 hours.

Days taken that are not paid by the employer must be recoverable, unless the employee chooses to charge these absences to their annual paid leave.

An important advantage for the employee candidate is that these days of absence are treated as actual work for determining paid leave entitlements and seniority rights (Article L. 3142-82 of the Labor Code).

1.2. Resources made available to the employee representative

The employee who accedes to a local elected mandate may suspend their employment contract, if they hold executive functions (a), but also receives a credit of hours to carry out their mission (b).

a.     Cases of suspension of the employment contract

Articles L. 3142-83 and following of the Labor Code now provide that all employees elected in their municipalities (small and large) to the position of mayor or deputy mayor may request, if they have one year of seniority in the company, that their employment contract be suspended for the duration of their term, and that they benefit from a return to an identical or equivalent position at the end of their term.

Previously, these provisions intended for employees elected to the National Assembly and the Senate were reserved for mayors and their deputies in municipalities with more than 10,000 inhabitants.

b.     Allocation of a time credit

Article L. 2123-1 of the General Code of Local Authorities provides that the employer is required to allow their employee who is a municipal councilor the necessary time to participate in meetings and other committees, provided they have been informed with sufficient notice.

Furthermore, the hourly quotas allocated to elected officials, mayors, deputies, and municipal councilors, in the form of a quarterly flat rate, to allow them to have the time necessary to exercise their mandate, have also been revised upward.

Municipalities	Mayors	Deputies	Municipal councilors
Less than 3500 inhabitants	122.5h	70h	10.5h
3500-9999 inhabitants	122.5h	70h	10.5h
10,000-29,999 inhabitants	140h	122.5h	9:00 PM
30,000-99,999 inhabitants	140h	140h	35h
More than 100,000 inhabitants	140h	140h	70h

This period of absence, which cannot be carried over from one month to another, is not remunerated by the employer, who is nevertheless obliged to accept the use of this time credit, upon request from elected employee representatives.

2.     Support for local elected officials

This support involves not only organizing individual interviews with the employer (2.1), but also proposing a training plan (2.2), and protection against discrimination (2.3).

2.1. Individual interviews

Article L. 2123-1 of the CGCT established an individual interview between the elected employee and their employer, which allows the practical arrangements for exercising their mandate in relation to their professional activity to be organized from the outset.

2.2. Training actions

A report by the Inspectorate General of Administration and the Inspectorate General of Social Affairs dated February 24, 2020, revealed that only a minority of elected officials underwent training.

That is why, in anticipation, the law of December 27, 2019 authorized the Government to implement, by way of ordinance, by the end of September 2020, measures to frame the training process for local elected officials, who can now also benefit from validation of acquired experience (VAE) related to their elective functions.

2.3. Protection against discrimination:

Since the 2015 law, local elected officials exercising a professional activity in parallel have benefited from the protection dedicated to protected employees, provided for by Book VI of the Labor Code. For example, they could not be dismissed without the agreement of the Labor Inspectorate.

The legislator preferred to replace it with a less intrusive protection, which had the effect of discouraging some employers from hiring employees holding an elective mandate outside the company. Henceforth, employees elected to a local mandate benefit from special protection provided for by Article L. 1132-1 of the Labor Code due to the discrimination they could face in hiring or upon termination because of their elective mandate.

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These protective measures, which are generally not very restrictive for the employer, were clearly strengthened on the eve of the municipal elections to encourage the increasingly rare vocations of citizens to serve the city. No one will complain if they had the desired effect!

Business law