Cryptocurrencies: the kryptonite of the Labour Code

In an era of technological revolution in the world of finance brought about by the emergence of the blockchain and cryptocurrencies on the market, more and more companies worldwide are now considering the possibility of paying their employees through this new medium of exchange.

Indeed, the implementation of a cryptocurrency payment system is undeniably an axis of strategic development for companies in certain specialised sectors such as finance, gaming, etc.; it is also a key and attractive criterion for the upcoming generations who are showing a strong and growing interest in the subject.

Obviously, France is not immune to the phenomenon either. It is however, a country that perhaps faces stricter restrictions than in other countries, insofar as the implementation of the regulations never in place today, never took into consideration the technological revolution and technological development of cryptocurrencies in terms of labour law.

Nevertheless, there are opportunities for companies to use cryptocurrencies as a method of remuneration provided, they ensure compliance with certain rules in order to reduce the risk of litigation in the future.

It should be remembered that the social law in France was designed with the protection of the employee (considered as the “weaker” part in an employment relationship) in mind. Furthermore, due to the fundamental nature of basic support and maintenance that remuneration provides the employee as a return on his or her work, it is critical that certain guarantees are established.

Can the use of cryptocurrencies be considered in the payment of a salary?

Today in France, it is legally complicated to consider paying a salary in cryptocurrency, given the following strict legal principles:

• The requirement of a minimum wage to be respected: in addition to the minimum wage which is the general legal basis for remuneration, annually-revised minimum agreements are also set with a hierarchical precedence within companies and/or the branches of an activity.
• Legality of the currency of payment: wages must be paid in euros being the only legal currency in France^[1]. It is possible to set the amount in a foreign currency, but this remains a complicated exercise from a practical point of view as the amount will necessarily have to be converted into euros according to the official exchange rate in force on the day of payment of the salary^[2].
• The public policy prohibition of wage indexation clauses: clauses indexing wages to the minimum wage and the general level of prices, the general level of wages, or the price of goods, products, or services unrelated to the activity of the company are void^[3].
• The general principle of equal pay for equal work, allowing employees to benefit from the same pay and benefits as their colleagues in the same situation and offering them social protection in the event of any difference in treatment which cannot be justified by objective

Special attention should be paid to the legal system which allows payment in cryptocurrency. Although it would not be necessary to touch the economics of the contract, nor to obtain the prior agreement of employees, the latter cannot in any case whatsoever, have a payment in cryptocurrency imposed on them, and this would have to remain optional. Moreover, in the absence of a defined legal framework, it is essential that careful thought is given to the development of a payment method that complies with the principles laid down by French labour law, in order to limit risks in the case of litigation. Where there are social partners, they should be involved in any consultations or negotiations (e.g., for those companies which are subject to mandatory annual obligations).

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[1] Article L. 111-1 of the Monetary and Financial Code
[2] Cass. soc. 3 April 1990 no. 87-40.003
[3] Articles L. 3231-3 of the Labour Code and L. 112-2 of the Monetary and Financial Code