Employment of a foreigner in Poland. How to prepare for the control of the legality of employment?

Polish employers employing foreigners should always expect the risk of initiating an inspection of the legality of employment of workers from abroad. Two authorities are authorized to carry out such control:

• Border Guard and
• the State Labor Inspectorate.

During such an inspection, the authorities are authorized to examine not only the current situation, but also the entire period of employment of the foreigner (up to 5 years back, due to the statute of limitations for crimes of this type).

Recruitment in accordance with Polish immigration law

Thus, examining the possibility of legally entrusting work to a foreigner in the territory of Poland should be one of the mandatory stages of recruiting personnel from abroad. Also, one should not forget and obligations on the part of the employer also in the course of employment of foreigners, for example, when changing the conditions of employment or the expiration of their residence documents.

Typical mistakes when hiring foreigners

It is not uncommon to encounter a situation when an employer, accepting a foreigner for work, asks him only to show his passport and residence card. Seeing on the residence card the endorsement “access to the labor market”the employer, being convinced of the possibility of freely entrusting work to the holder of such a residence card, decides to allow the foreigner to work and concludes a contract with him. Definitely not a safe move. The aforementioned endorsement basically does not give the employer any information about the possibility of entrusting work and the conditions of such work.

Conduct an audit and implement a checklist when hiring foreigners.

The case-by-case nature of the provisions of Polish immigration law and the multiplicity of legal acts in this area, which are not fully coordinated among themselves, often require employers to conduct an audit of the legality of the employment of personnel. This may be related to the announced control by the Labor Inspectorate or the Border Guard on the legality of the entrustment of labor, or it may simply be due to the efficient operation of the company’s risk management system and the desire to avoid any negative factors associated with the business.

What are the penalties for illegal employment of a foreigner

Entrusting work to foreigners in violation of applicable laws can take various forms, either by failing to first obtain a work permit or working under conditions other than those specified in the permit. Violations of legality may constitute misdemeanors or even crimes. In addition to fines imposed on both employers and employees illegally performing work, Polish law also provides for penalties of restriction of liberty and even deprivation of liberty for up to 3 years.

Prohibition of employment of foreigners

The most severe and most common practical consequence of illegally entrusting work to foreigners for the employer may be a ban on employing foreigners in the future. For foreigners, on the other hand, illegal employment may result in the issuance of a return obligation decision (deportation) and a ban on re-entry into the territory of EU countries for up to 5 years.

Illegal employment of a foreigner – further consequences

It is also worth noting that illegal employment, even if it lasts only for 1 day, will negatively affect the possibility of further legalization of stay by foreigners themselves, in particular, the right to obtain a residence permit for a long-term EU resident or obtain Polish citizenship. This is because during these proceedings, the competent authority is required to examine the legality of the foreigner’s residence and work for the last 5 or, in the case of citizenship cases, up to 10 years. An employer who cares about the personal situation of his employees will certainly also want to ensure the legality of their employment for the entire duration of the employment relationship.

Examination of the legality of employment versus the legality of residence in Poland

The legality of employment of foreign workers also depends on the legality of their stay in the territory of Poland. For it is impossible to legally entrust work to a foreigner who is in the country without documents legalizing his stay.This situation will not even be improved by the employer obtaining a work permit in the meantime. Checking the legality of the employee’s stay during employment is among the most important duties of the employer.

Sample checklist for the employment of a foreigner in Poland

Thus, the following documents are most often examined during the examination of the legality of employment of foreigners in the territory of Poland:

1. Identity documents of foreigners (passports, residence cards),
2. Documents confirming the legality of stay on the territory of Poland (visas, decisions on granting residence permits, residence cards),
3. Documents authorizing the performance of work on the territory of Poland (work permits, registered declarations of assignment of work, notifications of assignment of work),
4. Documents exempting from the obligation to obtain a work permit (diplomas, certificates, certain types of visas, valid student cards, Cards of the Pole, etc.),
5. Contracts concluded between the employer and employees with annexes signed during the period of employment,
6. Documents confirming the amount and frequency of wages paid to the foreigner,
7. Documents confirming the fulfillment of the obligation to pay taxes and insurance premiums to the foreigner,
8. Personnel records, attendance lists, time records, etc.
9. Other documents.

Investigating the legality of employment – a challenge for employers in Poland

It follows from the above that controlling the legality of foreigners’ work is a major challenge for employers. We are talking here not only about foreign investors just entering the Polish market, but also about employers from Poland. Statistics from the State Labor Inspectorate show that the most common reason for violations of the legality of employment of foreigners was cited as the complicated nature of the regulations in this area and their frequent changes, including those related to waves of immigration to Poland or epidemic situations.

Therefore, employers are increasingly opting to outsource their responsibilities for legalizing the stay and work of foreigners to professional entities, such as law firms or HR companies. Our law firm will be happy to provide such assistance and examine all aspects of legal employment of foreigners. Feel free to contact us at [email protected]