Employment of foreigners – basic obligations of the employer
Performance of work in Poland by foreigners from non European Economic Area conutries imposes a number of obligations not only on the employees themselves, but also on their employers. It is not enough to require to show a residence or work permit before allowing a foreigner to work, as in most cases these documents will not confirm the right to work for that particular employer. Also, in a situation where a foreign employee does not have a work permit, does not always mean the lack of the right to work in Poland.
The employer’s obligation to constantly control that employee from abroad is entitled to legally:
- stay on Polish territory (so-called residence title),
- work in Poland,
should be considered the basic rule in entrusting work to a foreigner.
The fact of legal stay of a foreigner has fundamental importance when employing foreigners, because the lack of a residence title makes the work performed by the foreigner illegal. A document confirming the foreigner’s title of residence may be, e.g.:
- valid visa,
- a valid passport with a Border Guard stamp if the foreigner is a non-EEA national, but they are entitled to a visa-free travel and the period of authorized stay has not expired,
- valid temporary, permanent or long-term EU resident permit (it is not enough to show a residence card – you will also need to read the written decision of the authority),
- a valid passport containing the so-called „voivode’s stamp” confirming submission of the application for a residence permit. In this case, the employee’s stay is considered legal until the decision on the residence permit is issued.
Importantly, the employer is obliged to keep a copy of the document authorizing the legal stay of the foreign employee for the entire period of his work.
A document entitling to work in Poland or confirming an exemption from the obligation to have a work permit may be, inter alia:
- work permit,
- a declaration on entrusting work to a foreigner registered by the starosta (in the case of foreigners who are citizens of Ukraine, Russia, Belarus, Moldova, Georgia and Armenia),
- a uniform temporary residence and work permit,
- some types of temporary residence permits (to put it simply – in this case it is enough for a foreigner to have a residence card issued with the note „dostęp do rynku pracy” which means „access to the labor market”),
- permanent or long-term resident’s EU residence permit,
- Karta Polaka (Pole’s card).
Employers should also remember that:
- the work permit is issued only at the request of the employer and covers the provision of work for that particular employer. The same principle applies in the case of a registered declaration of entrusting work to a foreigner. Therefore, a change of employer by a foreigner makes it necessary to obtain a new work permit or to register a new declaration on entrusting work,
- the right to reside in Poland as part of a visa-free regime does not give the right to work in Poland. In this case, in order to employ a foreigner employer will have to obtain a document authorizing to work (unless the foreigner is exempted from the obligation to have a work permit),
- the expiry of the validity of the work permit or registered declaration of entrusting work to a foreigner does not mean the expiry of the right to work legally. The legislator has provided for these circumstances a number of facilities that will allow the extension of the right to work legally while waiting for a new work permit to be issued. One of the conditions for legal continuation of work in this case will be submitting a complete application for a new permit on time,
- changing the position or type of work performed by a foreigner, reducing the amount of remuneration below that indicated in the work permit, changing the type of contract concluded with the foreigner (except for switching the civil law contract to an employment contract) requires a new work permit,
- an employer entrusting a foreigner with work on the basis of a work permit is required to notify the voivode in writing within 7 days, inter alia on changing the employer’s registered office, name or legal form, not commencing work within a period of 3 months from the initial date of validity of the permit, break at work by a foreigner for a period of more than 3 months, termination of work earlier than 3 months before the period of validity of the permit.
Failure by the employer of the above obligations regarding the legality of employment of foreigners exposes him to criminal liability (in the form of a fine, restriction of liberty, and in some cases even imprisonment), and may also cause other negative effects, e.g. in the form of inability to continue employing foreigners or applying for funding the projects from EU funds or reimbursement of funds obtained.