In the post-COVID reality, remote work is a quite widespread phenomenon. In the coming days, a new amendment to the Polish Labor Code regarding remote work will also come into effect. A significant number of employers have already prepared for these upcoming changes by implementing appropriate regulations or procedures for personal data protection during remote work (read more: [link])
However, what is the situation regarding remote work when employing a foreigner, i.e., a third-country national from outside the EU/EEA/Switzerland? And will the Polish regulations be suitable for this situation?
Remote work from abroad – no visa or residence/work permits required
If we have employed a foreigner who performs work outside the territory of Poland, such an employee does not need to apply for a visa or a residence permit in Poland. Importantly, despite working for a Polish employer, there is also no requirement for a work permit. This is because the Polish Act on the Promotion of Employment and Labor Market Institutions of April 20, 2004 (Journal of Laws No. 99, item 1001) applies to foreigners performing work on the territory of the Republic of Poland.
Applicable law when providing remote work from abroad
One may wonder which country’s law will apply to the situation of a foreigner’s remote work outside the borders of Poland. The general rule is that the employment contract is subject to the law of the country where the work is performed. However, the parties have some freedom to determine the applicable law in the contract. It is worth emphasizing that the choice of law cannot result in the employee being deprived of certain rights or protections. Therefore, it is indicated that the provisions of the law of the country that provide better protection for the employee will apply. In such situations, it is always necessary to familiarize oneself with the labor law provisions that would apply to the employee locally, in the place of work (especially regarding minimum wages), and then resolve any potential conflicts between legislations.
Remote work from abroad and GDPR
If an employee provides work within the EU, EEA, or Switzerland, remote work should not cause any issues. However, if the employee provides work in a third country, and the employer authorizes the processing of personal data for the purpose of fulfilling employment obligations, we may then be dealing with the transfer of personal data to third countries under the General Data Protection Regulation (GDPR). This requires fulfilling specific obligations, particularly ensuring an appropriate level of security and protection. In any case of remote work, it is also important to ensure that the employee complies with the data protection procedures established by the data controller. Another significant aspect is the employer’s ability to monitor the employee in this regard, which will naturally be more challenging when it comes to remote work from abroad. Limited control capabilities may, in turn, pose a greater risk for the employer regarding potential breaches.