According to the regulation of the Act on Foreigners, a foreigner is a person staying in Poland without Polish citizenship. Employing foreigners who are citizens of European Union member states, European Economic Area, and Switzerland does not pose major difficulties in Poland and is carried out on the same terms as for Polish citizens. However, the situation is different when it comes to employing a third-country national in Poland, and this article will address such employment.
Verification of work and residence entitlements before employment
The employment of foreigners in Poland generally requires undergoing a legalization procedure for employment, and sometimes also for residence. Before starting the formalities related to employment, the employer should:
- Verify whether the foreigner is staying in Poland legally.
- Check whether the residence permit authorizes taking up employment.
The residence permit can be in the form of a residence permit or a visa. The document confirming the possession of a permit is the residence card. These documents should indicate the purpose of the foreigner’s stay, which should entitle them to take up employment.
Which residence document does not authorize employment in Poland?
The fact that a foreigner can stay in our country does not mean that they will be able to work. Employment of a foreigner may affect the declared purpose of obtaining a visa or residence permit. Documents such as a tourist visa, transit visa, visa issued in connection with temporary protection in Poland, or a visa issued in connection with transit for humanitarian reasons, due to the state’s interest, or international obligations are examples of documents that do not authorize employment. In such a situation, the foreigner should apply for a new document legalizing their stay in connection with employment.
Making and retaining copies of the foreigner’s residence documents
The employer is not only entitled but also obligated to make and retain copies of documents legalizing the foreigner’s stay in Poland throughout the entire period of employment. This obligation arises from Articles 2 and 3 of the Act of June 15, 2012, on the consequences of entrusting the performance of work to foreigners staying unlawfully in the territory of the Republic of Poland (Journal of Laws of 2021, item 1745).
Drafting a written employment contract and legalizing work
The employment contract with a foreigner should be in writing, in a language understandable to them. Formalizing cooperation with a foreigner can also take the form of a civil law contract. It is essential that the working conditions align with the information provided to the authorities for work legalization. Registering a declaration of entrusting work to a foreigner or obtaining a work permit does not replace the contract and does not automatically establish an employment relationship. It is necessary to both sign the contract and apply for the appropriate document legalizing work if required by regulations.