An employer willing to employ a foreigner must first determine whether the future employee needs a work permit in Poland. If such permit is not required the employment does not need to meet any additional requirements, i.e. is based on rules applicable to Polish nationals.
If it turns out that a foreigner with whom we intend to work may not be employed without obtaining a document authorizing him to work in Poland, we should consider what procedure we should follow. Basic documents entitling a foreigner to be employed in Poland are: a work permit, a declaration of intention to entrust work to a foreigner, and a temporary residence and work permit.
A work permit is issued for a specific foreigner and employer, post or type of work, information concerning minimum wage are included as well as information about working time and the period of validity of the permit. If a foreigner is posted to work in Poland, permit determines the entity to which the foreigner is posted.
A work permit is issued at the request of the employer for a period no longer than three years which may be extended. If a foreigner serves as the board of the legal person who on the day of application employed more than 25 persons, a permit may be issued for a period no longer than 5 years, whereas in the case of foreigners in delegation – for the period of delegation. If the employer intends to renew the work permit, should make this via application not earlier than 90 days and no later than 30 days before the expiration of the current permit..
There are two conditions that must be fulfilled jointly in order to receive work permit:
• foreigners salary cannot be lower than the salaries of employees who work on similar post;
• operator willing to employ a foreigner must attach governor’s annotation about not being able to meet staffing needs of the employer based on the records of the unemployed and job seekers or the negative result of the recruitment organized for employer, commonly referred to as “labor market test.”
The law specifies, however, situations when issuing a work permit is possible without the need for "labor market test.” This concerns:
• extension of the work permit for the same foreigner, and in the same post;
• issuing a work permit for a citizen of Armenia, Belarus, Georgia, Moldova, Russia or Ukraine, who does the job of nursing care or as domestic help to individuals in the household;
• issuing a work permit for a citizen of Armenia, Belarus, Georgia, Moldova, Russia or Ukraine, who immediately before the application for a permit performed a work for a period of not less than three months for the same employer, and was on the same post under a contract in writing. The condition for issuing a work permit without a "labor market test" in this case is to present the recorded statements and contracts with the foreigner and the documents confirming the payment of social insurance contributions, if they were required in connection with the performance of work.
Entity employing a foreigner, who is required to have a work permit, is obliged to:
• include in the contract with the foreigner conditions specified in the work permit;
• conclusion of the agreement in writing and presentation of a translation in language understandable to foreigner, before signing the agreement; providing foreigner a copy;
• inform foreigner of the actions taken in connection with the proceedings for granting or renewing a work permit, and any decisions concerning the permit;
• exercise due diligence procedures for the authorization and extension of work permits for foreigners;
• payment of a foreigner’s outstanding remuneration for the work performed as in the application for a work permit, and to pay social insurance contributions and income tax advances in a situation where the remuneration is paid in the lesser amount than the one indicated in the application;
In addition, the entity employing a foreigner, who is required to have a work permit, is obliged to notify within 7 days the provincial governor about:
• commencement of work by a foreigner in another capacity or a different position than those specified in the work permit;
• change of the main office of the company or place of residence, name or legal form of the entity entrusting the foreigner to perform work; or the acquisition of company or its part thereof by another employer;
• transfer of the company or its part to another employer;
• change of the person representing the employer;
• not taking work by a foreigner in the period of 3 months from the initial date of validity of the work permit;
• cessation of work by a foreigner for a period exceeding three months;
• completion of the work by a foreigner earlier than 3 months before the expiry of the work permit.
TYPES OF WORK PERMITS
Depending on the type of work performed by a foreigner or a type of employer, we can divide the work permits into following types:
• type A – is for a foreigner who performs a work on Polish territory on the basis of a contract with an entity whose office, branch, factory etc is located on the territory of the Republic of Poland;
• type B – is issued to a foreigner who is a member of the board of directors of a legal entity registered in the register of companies or forming a corporation with the organization which resides on Polish territory for a period exceeding a total of six months over the next 12 months;
• type C – applies to a foreigner who performs work for a foreign employer and is delegated to Poland for a period exceeding 30 days in a calendar year to a branch or establishment of a foreign entity, or an entity associated with a foreign employer (within the meaning of the Act of 26 July 1991 r. on income tax from natural persons);
• type D - is issued to a foreigner who performs work for a foreign employer not having a branch plant or other form of organized activity on the Polish territory and is posted to the Polish in order to implement the services on a temporary and occasional basis (service export);
• type E - is designed for a foreigner who performs work for a foreign employer and is delegated to Poland territory for a period exceeding 30 days over the next six months for any purpose other than those mentioned above.
CONSEQUENCES OF ILLEGAL EMPLOYMENT OF A FOREIGNER
Such act is an offense subjected to a fine of not less than 3,000 PLN. A similar punishment may incur a person who receives financial benefits from a foreigner in exchange for taking steps to obtain a work permit or other document authorizing the work. Misinforming and misdirecting a foreigner that results in performing an illegal work also is an offense, subjected to a fine. In this case, it is a fine of 10 000 PLN.
1. Act on employment promotion and labor market institutions
2. Foreigners Act
3. Regulation of the Minister of Labour and Social Policy of 21 April 2015. On the cases in which, employing a foreigner on the Polish territory is allowed without having to obtain a work permit
4. Regulation of the Minister of Labour and Social Policy of 29 January 2009. On the determination of cases in which the work permit is issued regardless of the specific conditions for issuing work permits for foreigners.