The new regulations allow authorities to refuse to issue a work permit to a foreigner if the circumstances indicate that the work would be entrusted by an entity that is not a temporary employment agency operating in the territory of the Republic of Poland in accordance with applicable regulations, and the work would be performed for the benefit of a third party.
What Is Permissible?
- Temporary Work – under the principles defined in the Act of July 9, 2003, on the Employment of Temporary Workers;
- Process Outsourcing – if, among others:
- it concerns a clearly separated business process (e.g., accounting, cleaning),
- the service provider independently manages the workers (recruitment, staff selection, supervision, working time, quality control),
- the service is performed without subordination of the workers to the instructions of the client.
How to Minimize the Risk
- Outsourcing contracts should describe, among other things, a specific service including the expected result, and not merely provide personnel for work;
- The service provider should:
- be responsible for work organization,
- provide the necessary equipment and know-how for the service execution;
- Documentation should be prepared and stored in case of potential inspections (i.e., contracts, service descriptions, service execution reports);
- In case of doubts about the legality of outsourcing practices, consider using a licensed temporary employment agency.
Penalties
- A fine of at least PLN 6,000 per foreign worker unlawfully assigned to work – the fine is imposed on the entity benefiting from the services;
- Potential recognition of an employment relationship and the obligation to pay outstanding social security contributions (ZUS);
- Liability under tax law;
- Potential liability under criminal law.
How We Can Help
- We will analyze service outsourcing contracts in terms of the risks associated with unlawful employee outsourcing;
- We will provide support in maintaining appropriate evidence documentation in case of potential authority inspections;
- We will prepare legal recommendations for choosing the appropriate form of cooperation (process outsourcing, temporary work);
- We will provide legal support in the event of inspections by authorities.
