What must the employer do? – obligations of the employer and consequences of illegal employment
The employer has several obligations towards the employer and the state. First, it must have a written agreement with the employee. It has to report them to social security and pay contributions
It is also obliged to employ only foreigners who have the right to work. When the employer is proven e.g. to use deception or a business dependency and to force a foreigner to work illegally, the fine ranges from PLN 3,000 to PLN 30,000 (art. 120 Law 3).
The same penalty shall also apply to offences consisting of:
– leading another person to entrust illegal work to a foreigner – using misinformation, exploitation of an error or inability to properly understand the action (art. 120 Law 5),
– demanding a financial benefit from a foreigner for takingactionsaimedatobtaining a workpermitorotherworkentitlement (including a declaration on entrusting the work to a foreigner, whichmay be used in the case of citizens of Ukraine, Belarus, Russia, Moldova, Georgia and Armenia) – art. 120 Law 4.
– entrusting work to a foreigner on less favourable conditions, giving them less protection than specified in the work permit, uniform residence and work permit or declaration, in particular:
– for a lower remuneration than indicated in the permit or declaration, based on a contract less favourable to the foreigner, with a lower level of protection (e.g. a civil law contract instead of the employment contract indicated in the permit or declaration).
In short, ifyouremployerurgesyou to workunder the table, saysthatyouhave to paythem for obtaining a workpermit, orgivesyouworseconditionsthandeclared in the statement of entrustment, itcommits a crime.
The employer is obliged to notify the voivode who issued the foreigner’s work permit in writing about the following circumstances within 7 days:
– the foreigner started the permitted work in a different position than specified in the permit (this is only allowed for a total period not exceeding 30 days in a calendar year);
– the foreigner has not taken up work within 3 months from the initial work permit validity date;
– the foreigner has stopped work for a period exceeding 3 months;
– the foreigner has resigned from the job earlier than 3 months before the work permit expiry (art. 88i of the Act on Employment Promotion and Labour Market Institutions).
A fine from PLN 100 to PLN 5,000 can be imposed for failure to comply with the above obligation. (art. 120 Law 6 of this Act).
After registering a declaration on entrusting the work to a foreigner District Labour Office has registered, the employer is obliged to notify this office in writing about the:
– taking up work by a foreigner – at the latest on the first day of work;
– failure to take up work by a foreigner – within 7 days from the commencement date specified in the register of declarations.
– The employer or the foreigner can (but is not obliged to) notify the PUP about the termination of the foreigner’s work based on the declaration (art. 88z sec. 13 and 16 of the above-mentioned Act).
Failure to notify the PUP about taking or not taking up work by a foreigner, providing this office with false information about it, or about the end of work, is punishable by a fine of up to PLN 5,000 (art. 120 Law 10).
If the employer regularly employs foreigners under the table, he can get banned from issuing work permits. The employer is also obliged to cover the costs related to the issuance and execution of the decision to return (leave the territory of Poland) in a situation where this decision is subject to forced execution (art. 337 sec. 3 of the Act of 12 December 2013 on foreigners)