Up to now, any employer employing a non-EU/EEA foreigner in Poland was obliged to first make sure that he held a valid work permit. Residence permitting issues were handled by the individual, with varying degrees of support from the employing company, yet always ultimately the responsibility of the individual. Now this balance is likely to change due to new legislation concerning the penalties for employing a foreigner not residing legally in Poland.
Under the new legislation employers, contractors and subcontractors that employ or contract work to non-EU/EEA foreigners must obtain confirmation that the foreigner is in Poland legally before allowing him to commence work. The new Act requires that a copy of this document be retained for the duration of the employment relationship or contracted work, but sensibly the employer should retain it afterwards too, just in case of any post-termination proceedings or control audit.
An entity that employs foreigners at the moment the new legislation comes into force is required to obtain the document confirming that a citizen of a third country is in Poland legally within 45 days i.e. by 4 September 2012 and then to keep it in that employee’s files. It should also take care to scrutinise the document before filing to check its validity period and for signs of possible forgery. If this requirement is fulfilled and the foreigner is registered for social security purposes where required under other applicable Polish legislation, the employer will not be held liable for the consequences should it later become apparent that he has has been employed in Poland illegally.
And the penalties proposed may be severe for the company. The penalty for contracting work to foreigners in Poland who do not hold legitimate documentation is a fine, restricted freedom (suspended sentence or similar sanctions) or a prison sentence of up to three years. The Act also provides that the employer can be banned from competing for public tenders, and banned from receiving certain types of EU funds or perhaps ordered to return them. Labour agencies which are found employing foreigners who are in Poland illegally are removed from the register maintained by the Local Administrative Office (marszałek województwa), which will prevent them from operating. And this is all in addition to the individual’s claims for compensation, presumptions of employment of at least 3 months or presumption of compensation equal to 3 times minimum monthly wage in Poland if the person is claimed not to have been an employee but contractor.
A small change in the list of pre-employment documents to be verified? Maybe, but a very important one.