What is employee outsourcing?
The idea of employee outsourcing involves entrusting the execution of specific tasks to another company, involving its employees instead of one’s own. The activities that would typically be assigned to our own employees are actually performed by employees of another company whom we do not directly employ. This is done through an agreement with the formal employer of these individuals, who acts as our contractor.
Who can provide employee outsourcing?
Employee outsourcing is a convenient solution for companies facing staffing issues while avoiding long-term commitments with employees. As for the other side of this relationship, the employer of the “borrowed” employees, there are no specific limitations on entities. Providing such services does not require being registered or fulfilling additional formalities. However, due to the nature of these services, they are most commonly provided by temporary staffing agencies. The borrowed employees are often foreigners.
Employee outsourcing as disguised temporary work
Temporary work is limited: an employee employed by a temporary staffing agency can work for one employer for a maximum of 18 months. On the other hand, traditional employee outsourcing is not subject to such limits. According to the authorities, this can lead to abuses because companies, seeking to utilize an employee for a longer period, adopt the structure of employee outsourcing instead of temporary work, thereby circumventing the established limit for temporary employment. To prevent this, an important restriction has been included in the draft law on employing foreigners, which is expected to come into force in early 2024.
Employee outsourcing of foreigners only through temporary staffing agencies
The draft law on employing foreigners includes Article 13(1)(7), which indicates that the authority will refuse to issue a work permit to a foreigner if circumstances indicate that the foreigner would be employed by an entity that is not a temporary staffing agency operating legally in Poland, and the work would be carried out for and under the direction of a third party. In other words, if the foreigner were to perform work for another entity, their formal employer can only be a temporary staffing agency that must comply with the 18-month employment limit. Otherwise, the work permit will not be issued. However, it should be noted that this solution seems to fulfill its intended purpose only at first glance. Due to the lack of a definition of “work for another entity,” this solution may significantly impact various types of outsourcing services.
Employee outsourcing still has a chance
In online discussions, there have been voices suggesting that the Ministry of Family and Social Policy has already issued recommendations to voivodeships not to issue work permits to foreigners employed by companies providing employee outsourcing. However, it is important to remember that the discussed provision is not yet in force and therefore cannot be legally enforced. The legislator still has a chance to clarify the regulations. I hope that will be the case in practice.