Control of the legality of employment of foreigners

Service

The control of the legality of employment of foreigners is the responsibility of the National Labor Inspectorate. In all district labor inspectorates, specialist employment legality sections have been established, in which labor inspectors specializing in this subject are employed. The Border Guard is also entitled to control the legality of employment of foreigners. Both services cooperate with each other.

A foreigner works illegally when:

  • does not have a valid visa or other document entitling him to stay in Poland;

  • the basis of his stay in Poland does not entitle him to work;

  • performs work without a permit, in cases when it is required;

  • performs work under different conditions or in a position other than those specified in the work permit;

  • performs work without concluding the required employment contracts or civil law contracts.

As part of the inspection, the National Labor Inspectorate, apart from the above-mentioned ones, also examines the circumstances of the foreigner's registration for social insurance, payment of contributions to the Labor Fund for him, and compliance by foreign employers with the minimum standards of Polish labor law towards foreigners posted to work in Poland.

What does the legality of employment control look like?

The control of the National Labor Inspectorate consists in examining the compliance with employment law, other gainful work and the performance of work by foreigners. The legality of employment is verified at the seat of the controlled entity and in other places where its tasks are performed or where financial and personnel documents are kept. It is performed by labor inspectors working in a team of two, upon presentation of a service card and authorization to carry it out. Labor inspectors are not required to inform the employer of the planned inspection. Moreover, they are entitled to conduct it at any time of the day or night.

Employment legality control - what documents to prepare?

In the case of checking the legality of employment of foreigners, inspectors, before starting the documentation examination, may check the identity of persons staying in the workplace and interview them.

During the inspection, the labor inspector may demand that he be presented with:

  • documents regarding the legality of employment, such as: a work permit, uniform residence and work permit, or the entity's declaration of the intention to entrust work to a foreigner, registered in the poviat labor office,

  • employment contracts and civil law contracts concluded with foreigners,

  • attendance list, HR documentation regarding, inter alia, remuneration paid to foreigners and documents confirming the fulfillment of obligations by the entity entrusting the performance of work to a foreigner, for whom a work permit is required.

Inspection findings are generally documented in the form of a protocol.

Consequences of finding irregularities

If the inspection of the legality of employment confirms violations of the law, the labor inspector applies appropriate legal measures - such as:

  • issuing a speech (or an oral instruction),

  • the imposition of a fine by way of a criminal mandate or

  • sending a motion for punishment to the court in connection with the offenses specified in Art. 120 of the Act of 20 April 2004 on employment promotion and labor market institutions or in art. 11 of the Act of 15 June 2012 on the effects of entrusting work to foreigners residing in the territory of the Republic of Poland in violation of the provisions.

Pursuant to Art. 120 paragraph 1 and 2 of the Act of 20 April 2004 on employment promotion and labor market institutions, entrusting a foreigner with illegal performance of work, and illegal performance of work by a foreigner are a prohibited act.

An act committed by a person acting on behalf of the employer is punishable by a fine of PLN 3,000-30,000, and the foreigner is liable to a fine of PLN 1,000-30,000.

The labor inspector notifies the Border Guard about the violation of the provisions on foreigners, which may result in issuing a decision obliging the foreigner to leave the territory of the Republic of Poland. In such a case, the costs of the proceedings are borne by the entity entrusting the work to the foreigner.

In addition, the labor inspector notifies the voivode in the event of violation of the provisions on employment promotion and labor market institutions related to the employment of foreigners or entrusting them with other paid work, in particular, informs about the circumstances on the basis of which the voivode revokes the issued work permit or issues a decision refusing to issue work permits.

What is the inspection of the legality of employment carried out by the Border Service?

The Border Service controls the legality of work performed by foreigners, conducting business activity by them and entrusting them with work. The Border Service may control not only employers, but also entrepreneurs who do not employ an employee, and other institutions, and even natural persons.

During the inspection, Border Guard officers have the right to:

  • move freely within the premises of the controlled unit without the obligation to obtain a pass and are exempt from the obligation to undergo a body search;

  • controlling documents related to employment, entrusting work or running a business and making copies thereof;

  • establishing the identity of persons present at the inspection site;

  • interviewing people suspected of violating the provisions on the legality of work performed by foreigners, conducting business activity by foreigners and entrusting them with work;

  • demand explanations from persons staying at the place of conducting the inspection;

  • documenting control activities with the use of audiovisual means;

  • using the help of experts and specialists;

  • inspecting the places of work, in particular in order to determine the number of work places.

The scope of the Border Guard's powers is wider than in the case of the National Labor Inspectorate. The Border Guard may use direct coercion measures, detain a foreigner or initiate proceedings for the expulsion of such a person from the country.

The inspection findings are described in the inspection report. Before signing the control report, the controlled entity has the right to object to the findings contained in the report within 7 days from the date of receipt of the report copy.

In the event of objections, the inspectors are obliged to immediately respond to them and provide the inspected party with information in writing about the method of considering the objections.

Remedies

Pursuant to Art. 59 of the Entrepreneurs' Law Act, the controlled entity may object to the undertaking and execution by inspection authorities, including labor inspectors and Border Guard officers, of inspection activities which violate the provisions of the Act, including:

  • failure to notify the inspected entity of the intention to initiate an inspection;

  • undertaking the inspection without presenting the official ID and authorization to carry out the inspection;

  • failure to inform the controlled about his rights and obligations during the control;

  • performing controls in the absence of the controlled entity or a person authorized by him;

  • undertaking and carrying out more than one control at the same entrepreneur at the same time;

  • exceeding the permissible duration of the control;

The objection must be submitted in writing within 3 working days from the date of the inspection. This will suspend the control activities. The inspection authority examines the objection within 3 working days from the date of receipt of the objection and issues a decision to withdraw the control activities or to continue them. The entrepreneur may lodge a complaint within 3 days from its receipt, the resolution of which should take place no later than within 7 days from the date of its submission.