Ninth Circuit Finds That The Garcetti “Official Duties” Rule Does Not Apply To Public University Employee Academic Speech

By:  Jayne Benz Chipman
Hirschfeld Kraemer LLP
San Francisco, CA

The Ninth Circuit, in Demers v. Austin, 729 F.3d 1011 (9th Cir. 2013), has boldly gone — where other federal circuit courts have heretofore been reluctant to venture — in declaring that applying Garcetti to academic speech would conflict with the First Amendment.  This unequivocal decision paves the way to potential Supreme Court review of the question expressly left open in the landmark Garcetti v. Ceballos, 547 U.S. 410 (2006) decision:  whether speech on academic matters by a public university professor is protected against employer discipline by the First Amendment.

Garcetti, the pivotal free speech case involving a deputy district attorney and not an academic, held that when public employees make statements pursuant to their “official duties,” the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.  The Supreme Court reversed the Ninth Circuit in so holding.  While Garcetti transformed free speech analysis for public employees in general, the court expressly left open the potential for an exception to the “official duties” rule:  “speech related to scholarship or teaching.”  This potential exception is now the rule in the Ninth Circuit.

The Demers Case

David Demers, a now former tenured professor at Washington State University’s Edward R. Murrow College of Communication, claimed that over a three-year period, he went from being a popular teacher and scholar with high evaluations to being a target for termination.  According to Demers, this was because he distributed a pamphlet called “The 7-Step Plan” and a draft from an in-progress book he was writing entitled, “The Ivory Tower of Babel.”  During the time he distributed the 7-Step Plan and draft portions of his in-progress book, Demers served on the Morrow School’s Structure Committee, which was actively debating the faculty structure at the school following its separation from the University’s College of Liberal Arts.  The 7-Step Plan advocated separating the Morrow School’s two faculties and giving a more prominent role to the faculty with a professional, rather than an academic, focus.

In addition to his employment with the University, Demers owned and operated an independent publishing company named Marquette Books.  As the publisher of Marquette Books, he sent the 7-Step Plan to various University administrators; the pamphlet also stated that it was prepared by Marquette Books L.L.C.  Additionally, Demers offered on behalf of Marquette Books to make substantial monetary contributions to the University’s unrestricted funds if the 7-Step Plan was adopted.  Demers also sent the 7-Step Plan to members of the print and broadcast media in Washington, University administrators, and some colleagues, but did not send the pamphlet to the Structure Committee.  With respect to the in-progress book, Demers described it as containing information that was critical of the academy, including some events at the University.  He attached draft copies of chapters of his book to his application for sabbatical, and described the book in his self-prepared Faculty Annual Reports.

Demers claimed that certain University administrators violated his First Amendment rights by retaliating against him for circulating the 7-Step Plan pamphlet and drafts of his book.  The alleged retaliation included:  knowingly using incorrect information to lower his performance review scores, spying on his classes, preventing Demers from serving on certain committees, preventing Demers from teaching basic Communications courses, instigating two internal audits, sending him an official disciplinary warning, and excluding him from heading the Communications sequence at the Morrow School.  Defendant administrators responded that the evaluations and investigations were warranted based on Demers’ performance.  They also asserted that distribution of the pamphlet was not protected speech because it was written and circulated pursuant to Demers’ official duties and, in any event, it did not address a matter of public concern.

The Ninth Circuit found that it was impossible, as a practical matter, to separate Demers’ position as a member of the faculty and as a member of the Structure Committee, from his preparation and distribution of the 7-Step Plan pamphlet.  Therefore, the court concluded that Demers was acting sufficiently within his capacity as a professor in distributing the pamphlet such that he was acting “pursuant to his official duties” within the meaning of Garcetti.  Notwithstanding this fact, the Ninth Circuit – noting the Supreme Court’s long history of upholding the expansive freedoms of speech and thought associated with the university environment – concluded that Garcetti does not apply to teaching and academic writing that is performed pursuant to the official duties of the professor.  Rather, the Ninth Circuit held that the extent to which such writing and teaching is speech protected by the First Amendment is instead governed by the balancing test set forth in Pickering v. Bd. Of Ed. Of Twp. High Sch. Dist., 391 U.S. 563 (1968).

Under Pickering – a case involving a public high school teacher who wrote a letter to a local newspaper complaining about budgetary decisions made by the school district – the interests of the public employee as a citizen in speaking on matters of public concern are balanced against the interests of the government employer in promoting the efficiency of the public services it performs through its employees.  The Ninth Circuit cautioned in Demers that Pickering balancing in cases involving academic speech is likely to be particularly subtle and “difficult.”  In explaining the difficulty attendant to assessing the nature and strength of the public interest in academic speech, the Ninth Circuit explained that judges should hesitate before concluding that academic disagreements about what may appear to be esoteric topics are mere squabbles over jobs, turf, or ego (i.e., not speech on matters of public concern).  Likewise, the Ninth Circuit noted that the nature and strength of the interest of an employing academic institution will also be difficult to assess, and cautioned judges to also hesitate before concluding that they know better than the institution itself the nature and strength of its legitimate interests.  In this regard, by way of example, the court observed that while ordinarily content-based judgment is anathema to the First Amendment, the evaluation of a professor’s writing for purposes of tenure or promotion involves judgment by the employing university about the quality of what has been written that is both necessary and appropriate.

The Ninth Circuit stated, however, that not all speech by a teacher or professor addresses a matter of public concern, and that the First Amendment does not protect speech that is essentially a private grievance.  Significantly, though, the Ninth Circuit took a broad view of what could qualify as protected academic speech.  In this regard, the court noted that protected academic writing is not confined to scholarship; academics in the course of their academic duties also write memoranda, reports and other documents addressing topics such as budgets, curriculum, departmental structure and faculty hiring.  Such writing, depending on its scope and character, may address a matter of public concern under Pickering.

In Demers’ case, the Ninth Circuit concluded that his 7-Step Plan addressed a matter of public concern under Pickering because it contained serious suggestions about the future course of an important department of the University, at a time which the Morrow School itself was debating some of the recommendations.  Because the District Court had reached a contrary conclusion, the case was remanded to address the Pickering balancing questions, as appropriate.

While the broad language used by the Ninth Circuit in the Demers case could be construed as extending the reach of its Garcetti exception for academic speech beyond professors at public post-secondary institutions, and into the primary and secondary school context, it is doubtful that such a broad application is intended.  This is because the Ninth Circuit has already stated its belief that the Garcetti carve-out for academic freedom applies only to teachers at public colleges and universities, and not to public primary and secondary school teachers.  (Johnson v. Poway Unified School Dist., 658 F.3d 954, n. 12 (9th Cir. 2011).)

            A Circuit Split Beckons Supreme Court Review

The Ninth Circuit is the first federal circuit court to hold squarely that Garcetti does not apply to academic speech at the college and university level.  Other federal circuit courts that have had the chance to weigh in on the issue have been less boldly definitive.

With Demers, the Ninth Circuit takes its place alongside the Fourth Circuit, which previously declined to apply Garcetti in Adams v. Trustees of Univ. of N. Carolina-Wilmington, 640 F.3d 550 (4th Cir. 2011).  Adams involved claims by an associate professor that the university did not promote him to full professor following his religious conversion because of his outspoken Christian and conservative beliefs.  Adams became increasingly vocal following his conversion about various political and social issues within and outside of the university, became a regular columnist for, and appeared on radio and television broadcasts as a commentator.  Adams’ columns addressed topics such as academic freedom, civil rights, campus culture, sex, feminism, abortion, homosexuality, religion and morality.  He also continued to receive strong teaching reviews from students and faculty.  The Fourth Circuit – concluding that Adams’ speech reflected the appropriate aspect of scholarship and teaching – declined to apply Garcetti based on the facts of Adams’ case.  Although the Fourth Circuit acknowledged the Supreme Court’s reservation of whether the Garcetti “official duties” rule applied when the speech in question was academic scholarship and teaching, the court noted that there may be instances when a public university faculty member’s assigned duties include a specific role in declaring or administering university policy, as opposed to scholarship or teaching, and that Garcetti may apply to the specific instance of a faculty member’s speech in carrying out those duties.

On the other side of the fence, the Third, Sixth and Seventh Circuits have declined to apply an exception to Garcetti for speech in the public college and university context.  Two years after Garcetti, the Seventh Circuit decided Renken v. Gregory, 541 F.3d 769 (7th Cir. 2008).  Renken was an associate professor at the University of Wisconsin-Milwaukee, who had obtained a grant from the National Science Foundation to establish a thermal engineering laboratory that required the university to share the cost.  Although the university agreed to share the cost, Renken disagreed with the university’s proposed use of the grant money and believed that the proposed use would violate federal law.  Renken therefore filed several complaints with various university committees, and ultimately filed suit claiming that he had been retaliated against (the university allegedly refused to pay his student assistants and proposed a reduction in his compensation) for his speech, in violation of the First Amendment.  The Seventh Circuit concluded that administering the grant fell within Renken’s teaching and service duties that he was employed to perform.  Applying Garcetti without any discussion of the Supreme Court’s mention of a possible academic exception, the Seventh Circuit found that Renken’s speech was not protected by the First Amendment because it was made pursuant to his official duties as a faculty employee, and not as a private citizen.

The following year, the Third Circuit in Gorum v. Sessoms, 561 F.3d 179 (3rd Cir. 2009), applied Garcetti’s “official duties” rule to determine that a former Delaware State University professor’s advising a student athlete in a disciplinary appeal, and involvement in rescinding an invitation to the University President to speak at a fraternity event, was not protected speech under the First Amendment.  The Third Circuit, unlike the Seventh Circuit, directly addressed the Supreme Court’s statement in Garcetti regarding “speech related to scholarship or teaching.”  The court voiced its accord with the Supreme Court that there is some argument that “expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by … customary employee-speech jurisprudence.”  However, the court noted that the “full implications” of the Supreme Court’s statements were “not clear,” and that as a result, federal circuit courts “differed over whether (and, if so, when) to apply Garcetti’s official duty test to instructors.”  Ultimately, the Third Circuit dodged the issue by determining that applying the Garcetti official duties test to the professor in the case before it did not imperil First Amendment protection of academic freedom in public colleges and universities because Gorum’s actions “so clearly were not ‘speech related to scholarship or teaching.’”

More recently, in Savage v. Gee, 665 F.3d 732 (6th Cir. 2012), the Sixth Circuit applied Garcetti’s official duties test to find that the Head of Reference and Library Instruction at Ohio State University’s speech as a committee member commenting on book recommendations was made pursuant to his official duties, and was therefore not protected speech.  While acknowledging the Supreme Court’s dicta in Garcetti, the Sixth Circuit determined that the speech commenting on a book recommendation was not related to classroom instruction and “was only loosely, if at all, related to academic scholarship.”  The Sixth Circuit reasoned:  “Thus, even assuming Garcetti may apply differently, or not at all, in some academic settings, we find that Savage’s speech does not fall within the realm of speech that might fall outside of Garcetti’s reach.”

* * *

Only time will tell whether the Supreme Court provides clarity on whether, and if so, when, to apply Garcetti or Pickering to public college and university employee academic speech.  However, for the time being in the Ninth Circuit, there is no equivocating about the existence of an exception to the Garcetti official duties rule for academic speech at the college level.

Are You Prepared for the Rising Sexual Climate on Campus?

By:  Lara Nochomovitz
Jackson Kelly PLLC
Denver, Colorado

Sexual culture on college campuses is changing. Is your institution prepared?  In July 2013, the New York Times reported that  “… traditional dating in college has mostly gone the way of the landline, replaced by ‘hooking up’ — an ambiguous term that can signify anything from making out to oral sex to intercourse — without the emotional entanglement of a relationship.”  The shift away from traditional dating to a so-called “hook up culture” seems to have a darker side too, as evidenced by the exponentially growing number of investigations of sexual assault on college and university campuses in the United States.

Over the past year, numerous institutions of higher education, from North Carolina to California and states in between, have become the subjects of investigations by the U.S. Department of Justice (“DOJ”) for violating Title IX of the Education Amendment of 1972 (“Title IX”).

Title IX prohibits gender based discrimination, such as sexual harassment, sexual assault and rape, in education programs, including extracurricular and athletic programs.  Colleges and universities have an affirmative requirement to prohibit sexual harassment and sexual violence or risk facing litigation and civil liability, including attorney fees and costs, and the loss of federal funding.  Violations of Title IX may also subject a college or university to damages that are not quantitatively measurable, but harmful nonetheless, including bad press and being subject to investigation, scrutiny and equitable sanctions by the DOJ.

Until recently, a 2011 “Dear Colleague Letter” published by the United States Department of Education provided the preeminent guidance on compliance with Title IX as relates to sexual harassment and sexual violence.  As the sexual climate on college campuses becomes more heated, the standard for Title IX compliance may also be rising.

One piece of evidence in support of this notion is the June 2013 “Resolution Agreement” (“Agreement”) between the DOJ and the University of Montana– Missoula (“U of M”).

The DOJ initiated a Title IX investigation at U of M after at least 9 students reported sexual assault in 2011.  Though U of M had “appointed a Title IX Coordinator, adopted policies and procedures regarding sex-based harassment, responded to complaints, and developed and provided training to employees and students,” the DOJ still required the University to enter the Agreement.  Among other provisions, the Agreement requires U of M to revise its policies defining sexual harassment and sexual assault, as well as those relating to the reporting, investigation and resolution of such offenses.  The Agreement also requires U of M to develop and provide Title IX training to a broad spectrum of the University population, including all staff, faculty and resident assistants, before the end of 2013.  U of M must also develop and implement a system to track complaints of all sex-based harassment.

In response to inquiries, including one from the American Association of University Professors, the DOJ has affirmed that the Agreement did not broaden the definition of sexual harassment or require the implementation of specific course materials.  The DOJ also noted that the Resolution Agreement was a solution to a specific set of circumstances present at U of M.  Yet the DOJ has stated that the Agreement “will serve as a blueprint for colleges and universities throughout the country.”  In light of this statement and the apparent rise in Title IX complaints and investigations by the DOJ, how can other colleges and universities learn from U of M? Where did it go wrong?

One key problem is that U of M had not one but eight separate policies prohibiting sexual harassment and sexual assault.  The DOJ concluded that the policies were ineffective in part because they confused definitions of “sexual harassment” and “hostile environment” and did not provide a clear path for reporting discriminatory sexual conduct.

When analyzing your existing Title IX policies to identify similar problematic issues, ask yourself:

Do the policies provide a clear definition of what conduct is prohibited?

  • Would a student know how and to whom to make a complaint?
  • Is there any ambiguity regarding the investigation and resolution of a complaint?

Members of the Higher Education Council help colleges and universities analyze, revise and implement Title IX policies – and provide counsel and representation when clients become the subject of a Title IX investigation.

Update: Union Organizing Efforts by NYU’s Graduate Students

By:  Euphemia “Phemie” Thomopolus
Hirschfeld Kraemer LLP
San Francisco, CA

As promised in our earlier post, we are keeping an eye on the NYU graduate student issue currently before the National Labor Relations Board.

On October 4, NYU offered a concession in its long-standing battle against graduate student unionization.  The university stated that it will not block an election to organize a teaching assistants union and agreed to negotiate with the union if one was created.  Graduate students’ reactions to NYU’s announcement were tepid at best.  The reason for their lackluster response is that NYU also reiterated that it will not accept unionization of its research assistants.  NYU stated that the reason it refuses to accept a research assistants union is because research assistants’ responsibilities are directly tied to their research and the pursuit of their degrees, making the relationship between research assistants and the university a purely academic one.

As a reminder, the NLRB has already addressed this issue.  In Brown University, 342 NLRB 483 (2004), the Board held that graduate student assistants are students with a predominantly academic relationship with their schools rather than employees, and therefore do not have the right to compel their employers to enter into collective bargaining.  Before the Brown decision, NYU was the only private university to negotiate a contract with a graduate student union, the Graduate Students Organizing Committee.  In the post-Brown era, things changed rapidly.  NYU refused to negotiate a new collective bargaining agreement with the GSOC and its graduate students and researchers petitioned the Board for an election to vote on union representation.

The Board invited comments on the issue last year.  Numerous educational organizations submitted amicus briefs urging the Board to uphold Brown, including our Higher Education Council of the Employment Law Alliance.  Click here to review the Higher Education Council’s amicus brief.

Given the response to NYU’s latest offer, it appears this issue will not be resolved at the negotiating table.  Stay tuned.

The Treatment of Adjunct Faculty under Health Care Reform

By:  Charlie Stevens
Michael Best & Friedrich
Milwaukee, Wisconsin

One of the challenges of the Affordable Care Act (ACA) facing colleges and universities is the singular approach the federal government has taken in requiring large employers to provide group health coverage to 95% of all “full-time employees” or pay a “shared responsibility” payment.  A full-time employee is one who averages 30 or more hours of service per week, yet many schools pay adjunct faculty, part-time athletic coaches, and many others on an other-than-hourly basis and in fact have never tracked the hours of such employees.  Determining how best to sort such employees into full-time versus part-time requires first some homework, then some decision-making as to new policies and procedures, then some administrative diligence.

Guidance from the IRS in rulemaking and clarification of the ACA, has mostly highlighted the situation and reported comments from the public, but has not otherwise been very helpful.  Some reported comments include crediting three hours (or other number) of service per week for each course credit taught or crediting 75% or other number of hours normally worked by a full-time member of the faculty.  The IRS then stated that employers of adjunct faculty and similarly situated employees:

. . . must use a reasonable method for crediting hours of service that is consistent with the purposes of [the pay-or-play rules or the ACA]. A method of crediting hours would not be reasonable if it took into account only some of an employee’s hours of service with the effect of recharacterizing, as non-fulltime, an employee in a position that traditionally involves more than 30 hours of service per week.  (78 FR 225, 1/2/2013,

Well, if a school does not know if a particular member of its adjunct faculty has traditionally averaged more or less than 30 hours of service per week, what is it to do?  My thoughts are as follows.

First, initial homework should be performed in attempting to reasonably determine actual hours of service for various elements of a school’s adjunct faculty, but how does one do that?  In talking with administrators, one experiences significant pushback against the concept of tracking all hours of all adjunct faculty, but it will be necessary to establish that some reasonable validation has been performed that backs up the approach adopted by the institution.  This will require at least some tracking of hours, some surveying, or at least some reasonable approach in determining the expected hours of service required to teach particular courses or at least the credit hours associated with particular disciplines.

Second, I think it would be a mistake to assume that all adjunct faculty can be covered under a single approach for crediting hours of service based on course credits taught.  It may take a different amount of time to teach English literature than it takes to teach welding.  Furthermore, an adjunct faculty member who has taught the same course for many years very likely spends less time at it then a new instructor.  Therefore, it may be necessary to separate adjunct faculty into different presumed tiers of crediting service, some being credited with 3 hours of service per credit hour taught, some being credited with 2.5 hours, some with 2 hours, etc.  Also do not forget any additional responsibilities assigned to the adjunct faculty member outside of teaching, for example, office hours, research and/or committee participation.  The number of tiers and how they are populated depends on the unique circumstances associated with the school and with the members of the adjunct faculty.

Third, in light of the substantial penalties that can be assessed if an employer does not offer coverage to at least 95% of its full-time employees, it would be reasonable to also impose some additional safeguards in terms of keeping the hours of service actually spent within the anticipated parameters.  Such safeguards could include:

  • Establishing, through manipulating the teaching assignments to adjunct faculty, a large gap between adjunct faculty presumed to average, say more than 32 hours per week and those presumed to average, say less than 28 hours per week;
  • Expressly building into the teaching contract the fact that the course(s) is/are anticipated to require less than 28 hours of service per week on average;
  • Requiring the adjunct faculty member to report those weeks in which more than 30 hours of service were spent teaching the course and indicating that if the instructor does not so report, then the school will presume that less than 30 hours of service were performed; and
  • Being prepared to offer coverage to adjunct faculty who are reasonably anticipated to perform on average more than 30 hours of service per week.

Fourth, once a protocol for crediting adjunct faculty service hours for ACA purposes is established, some reasonable monitoring and continued validation will be necessary or the school would eventually lose credibility that its approach is a “reasonable” one.  Again, it would appear unnecessary to track all adjunct faculty hours but reasonable sampling through tracking and/or surveying would make sense.

Unfortunately as often the case, new laws often make for new administrative burdens and the ACA is today’s leading example.  With careful homework, planning and monitoring, however, the above adjunct faculty issues can be reasonably managed.

Charles P. Stevens is an attorney and partner in the Milwaukee office of Michael Best & Friedrich, LLP.  With over 30 years of experience in Employee Benefits law, his practice includes all matters involving ERISA, employee benefits litigation, the Patient Protection and Affordable Care Act (PPACA), employer wellness programs, defense of multiemployer pension claims including withdrawal liability.  Mr. Stevens is known for his ability to assess and fix problems that arise with benefit programs, to engage in strategic planning in benefits compliance and risk management, and to vigorously defend employers and benefit plans in court and other forums.  He has substantial experience in employee benefit issues of institutions of higher education.

Mr. Stevens is distinguished in the area of employee benefits law by The Best Lawyers in America, published by Woodward/White, Inc. In addition, Mr. Stevens is recognized by Chambers USA: America’s Leading Lawyers for Business, in the area of benefits and compensation and as a Wisconsin Super Lawyer.

Considerations when Sending Faculty or Students Abroad — a United States Perspective

Bruce R. Alper of Vedder Price P.C. and James Erwin of Pierce Atwood LLP discuss considerations for colleges and universities when sending faculty or students abroad, offering a United States perspective.

The Accidental Contract

By:  Sarah L. Ford
Parker Poe Adams & Bernstein LLP
Raleigh, North Carolina

The faculty appointment letter is a time-honored tradition in academia.  Issued to new and returning faculty alike, these letters assure your teaching and researching employees of their place and role in the upcoming school year.  Over the years, though, the appointment letter has crept like kudzu through the Human Resources office of many colleges and universities.  We now see it popping up in the mailboxes of assistant librarians, development officers, and recruiters, as well as professors.

To understand why this is a problem, let’s briefly address why the migration occurred.  One simple explanation is that the appointment letter process thoughtlessly was transferred from faculty to non-faculty hires without regard to the implications.  The more significant explanation is that some administrators conjectured that by putting an end-of-the-school-year “expiration date” on all university employment, they would have more flexibility to discharge weak employees.  The theory was that if you didn’t “reappoint” your university catering manager, for example, you weren’t firing him or her, but simply choosing not to renew an expired contract.  Unfortunately for the institutions who have taken this path, it does not provide the protection they are seeking.  Failure to renew an appointment typically is categorized by the EEOC and other civil rights agencies as an adverse employment action equivalent to a traditional termination.  Conclusion:  The appointment letter isn’t much use as a shield.

Worse, an appointment letter can be used by an employee as a sword if he or she is let go prior to the end of the spring term.  A disgruntled former employee can argue that he or she was appointed for the year and therefore is not subject to discharge on an at-will basis.  In this way, a university can find that it inadvertently has entered dozens and dozens of employment contracts and significantly has limited its own freedom to hire and fire as best serves the needs of the insitution.  If you are on this hamster wheel, there are ways to dismount, but also a risk of confusion and upset when employees do not receive the annual appoinment letter to which they have become accustomed.  Talking to an employment attorney about the best way to transition from an appointment letter culture to an indefinite but at-will employment culture is the first best step to ending a cycle of accidental contracts.

La Formation des Salariés au Cœur des Enjeux de Compétitivité et D’employabilité

2013 aura été l’année de la flexi-sécurité à la française, mêlant davantage de flexibilité pour les employeurs en contrepartie de leur responsabilité accrue en terme d’employabilité des travailleurs sur le marché du travail.

La loi du 14 juin 2013 dite de « sécurisation de l’emploi » modifie en profondeur notre modèle social, notamment en ce qu’elle réduit le périmètre d’intervention du régime du licenciement économique et des procédures (lourdes) afférentes. Cette réduction s’opère au profit d’une extension de celui des mesures de Gestion Prévisionnelle des Emplois et des Compétences (GPEC).

La GPEC vise à réduire les écarts entre ressources internes et les besoins en compétences de l’entreprise, notamment au travers de politiques de mobilité professionnelle et géographique. La mobilité fonctionnelle implique donc la formation professionnelle, qui apparaît plus que jamais située au cœur de la relation de travail. Elle devient également un outil de levier incontournable dans l’employabilité de chaque salarié.

La loi de sécurisation de l’emploi développe des dispositifs qui constituent autant de mesures alternatives au licenciement économique, qui seront complétés par une réforme du système de la formation professionnelle à venir début 2014.

A cette occasion, il nous a semblé opportun d’exposer brièvement le système de la formation professionnelle en France, à savoir l’obligation de formation des salariés qui repose sur l’employeur. Par ailleurs et dans le cadre de leur responsabilité sociale, les entreprises sont de plus en plus incitées à contribuer à la politique d’insertion des chômeurs et des jeunes entrant sur le marché du travail.


Le système de la formation professionnelle repose sur trois piliers :

–       un outil de RH et de RSE utilisé afin de rechercher un équilibre permanent entre les objectifs de compétitivité des entreprises et la responsabilité de l’employeur s’agissant de l’employabilité des salariés ;

–       une obligation de financement et de formation incombant aux entreprises employant des salariés en France ;

–       une gestion paritaire des fonds de la formation professionnelle qui place les branches professionnelles au cœur des politiques de la formation.

« Former ou payer » qui devient « former de toute façon »

Le droit français de la formation professionnelle est régi par un adage : « former ou payer ». Le système de la formation professionnelle français est conçu de telle sorte que l’entreprise a l’obligation de contribuer financièrement à la formation de ses salariés.

Le montant de la participation de l’employeur au financement de la formation professionnelle est égal à un pourcentage de la masse salariale de l’entreprise, qui diffère selon son effectif:

– 0,55% pour les entreprises jusqu’à 9 salariés;

– 1,05% pour les entreprises de 10 à 19 salariés;

– 1,6% pour les entreprises de 20 salariés et plus.

Depuis la fin des années 1990, l’obligation de formation s’est “autonomisée” de l’obligation de paiement pour devenir une véritable obligation de l’employeur  de former chacun de ses salariés. Le droit à la formation professionnelle est un droit individuel du salarié, comme le rappelle régulièrement la chambre sociale de la Cour de cassation, notamment dans un arrêt récent en date du 5 juin 2013.

Les acteurs

Afin de mener leurs politiques de formation, les entreprises doivent coordonner leurs actions avec la branche à laquelle elles appartiennent, ainsi qu’avec les pouvoirs publics. La matière nécessite donc une bonne compréhension des enjeux de pouvoirs (jeux d’acteur) et l’identification du bon interlocuteur.

La formation, outil de compétitivité des entreprises et d’employabilité

Ainsi, la formation professionnelle implique des entreprises une bonne maîtrise du système, face à la consécration d’une véritable obligation de formation de leurs salariés, indépendamment même de leur obligation de contribution financière, et ce, dans un contexte économique et social de plus en plus difficile. Dans le même temps, la maîtrise de sa politique de formation par l’entreprise est déterminante de sa capacité à mettre en place des mesures alternatives au licenciement économique, alors que l’acceptabilité par le corps social des licenciements de masse est de plus en plus contestée.

Les entreprises sont amenées à consacrer de plus en plus de ressources à la formation professionnelle, qu’elles soient humaines ou financières, expliquant la création d’un Pôle de la Formation Professionnelle au sein du cabinet Fromont Briens, dans la mesure où la compétitivité des entreprises et leur responsabilité en termes d’employabilité des salariés passe plus que jamais par la formation professionnelle.

Vocational Training at the Heart of Companies’ Challenges in Terms of Competitiveness and Employability

By: Sophie Pelicier Loevenbruck
Fromont Briens

2013 was the year of flexi-curity à la française, combining greater flexibility for employers in return for their increased responsibility in terms of employability of the workers in the labour market.

The June 14th, 2013 statute on employment securing significantly modifies our social model, especially in the sense that it reduces the scope of intervention of the regime of redundancy on economic grounds and related (cumbersome) procedures. Such a reduction was done in favour of an extension of the measures of jobs and skills management (“Gestion Prévisionnelle des Emplois et des Compétences”, also known as “GPEC”).

GPEC aims at reducing the gap between internal resources and the company’s needs, through occupational and geographical mobility measures. Therefore, occupational mobility is closely linked to vocational training, which appears to be more than ever at the heart of the employment relationship. It has also become a tool to leverage the employability of every single employee.

The statute on employment securing develops tools that constitute alternatives to redundancy that will be complemented by a reform of vocational training to come early 2014.

On this occasion, it appears interesting to briefly outline the system of vocational training in France, namely the employer’s obligation to train the workers that have already entered the labour market. Moreover, and as a part of their social responsibility, companies have been increasingly encouraged to participate to the integration of unemployed and young workers to the labour market.


The current French vocational training system is based on three pillars:

–       a HR and Corporate Social Responsibility tool used to balance the companies’ competitiveness objectives and the employer’s goal of ensuring the employee’s employability ;

–       a training and financing obligation due by national and foreign companies based on a contribution of fiscal nature ;

–       a joint management (“gestion paritaire”) of vocational training funds, which places employers and trade unions from both the professional branches and interprofessional levels at the heart of training policies.

« Train or pay » that has become « train anyway »

The French vocational training law is governed by the following saying: “train or pay”. The vocational training system is designed so that the company has an obligation to contribute financially to the worker’s vocational training.

The amount of the employer’s participation in the financing of vocational training is equal to a percentage of the payroll of the company, which varies with the size of its workforce:

– 0.55% for companies with up to 9 employees;

– 1.05% for companies with 10 to 19 employees;

– 1.6% for companies with 20 employees and more.

Since the late 1990s, the training requirement has clearly separated from the obligation to pay to become a real obligation of the employer to train each of his employees. The right to vocational training is an individual right for the employee, as is regularly pointed out by the social chamber of the French Supreme Court (“Cour de cassation”), most recently in its judgment dated June 5th, 2013.


To carry out their vocational training policies, companies need to coordinate their actions with the activity branch to which they belong, as well as with the State. The matter thus requires a good understanding of the power issues as well as in terms of identifying the right interlocutor.

Vocational training, a tool for business competitiveness and employability

Vocational training in France therefore requires the companies to have a solid knowledge of the system, as they were faced with the consecration of a real obligation to train their employees, clearly distinct from their mandatory financial contribution, in a more and more difficult economic and social context. At the same time, the company’s control of its training policy is critical to its ability to develop alternatives to redundancy based on economic grounds, at a time where the acceptability of collective redundancies is being increasingly challenged by the society.

Today, companies are known to devote more and more resources to training, whether human or financial, explaining the creation of a Vocational Training Department here at Fromont Briens, insofar as the competitiveness of enterprises and the workers’ employability are more than ever linked to the workers’ training, which is now placed at the heart of the companies’ strategic challenges.