Compulsory identification at the workplace for third-country nationals

In the Netherlands, there is a duty to identify oneself. In short, this means that everyone aged 14 and older must be able to identify themselves with a valid identification document when asked to do so by an authorised person. The following are considered valid forms of identification

• Passport;

• European identity card;

• Residence permit; or

• Driving license.

Dutch employers are both authorised and obliged to comply with the identification requirement. For everyone who is employed within your organisation, it applies that you as an employer must establish the identity before the employment starts. Every employee must also be given the opportunity to identify themselves at the workplace in the event of an inspection by the Dutch Tax Authorities, the Netherlands Labour Authority or the IND.

The identification obligation for employers consists of 3 parts:

• Verification duty;

• Retention obligation; and

• Duty of care.

On its website, the Government of the Netherlands summarises how employers should interpret this identification obligation. Because this is a summary, not all aspects are covered. In particular, the additional conditions and exceptions that apply to the employment of employees with a nationality from outside the EU/EEA and Switzerland (third-country nationals) are largely left out of consideration. Also in this channel, the immigration law aspect of the five elements - as mentioned in our earlier blog - remains underexposed.

Since the personnel and payroll administration must comply with these additional conditions, it is important for HR & Payroll professionals to be aware of these conditions. After all, only then can they be applied correctly. Below is an explanation of the additional conditions that are important for the employment of third country nationals.

Verification obligation

The employee's proof of identity must be verified before the start of the work. This applies to both the employer and the client in the case of agency workers.

A passport, European identity card or residence permit are considered valid documents for identification purposes. Although a driving license is often considered a valid identity document, this does not apply to establishing the identity of the employee. The reason for this is that the driving license lacks nationality.

Every employee's identity document must be demonstrably checked for the following points:

• Passport photograph corresponds to the person showing the identity document;

• Physical characteristics such as height and age correspond to those of the employee;

• Signature matches;

• Nationality is stated on the document;

• The document is valid on the date of entry into service.

Whereas it is sufficient for an employee from within the EU/EEA to check the proof of identity at the start of employment, a continuous check will be required for a third-country national throughout the employment process. Whenever the proof of identity is in danger of losing its validity, the employee will have to present a replacement document which the employer will have to verify in turn. In addition to the above-mentioned features, this identity document must also show that the person in question is permitted to work in the Netherlands. Obviously under the same conditions as that the work is actually carried out for the employer. This obligation applies to both the employer and the client.

Retention obligation

The employer is obliged to keep a copy of the identity document in its administration. This obligation exists until at least 5 years after the end of the calendar year in which the employment is terminated. Again, for most employees it is sufficient to do this once, namely when entering employment. In the case of third-country nationals, when the validity of the document with which the employee can demonstrate that he is allowed to perform work for this employer expires, a copy of the new document must be included in the administration.

Are third-country nationals posted to another employer? Then additional rules apply as well. Both employer and client must be able to prove during the entire employment period that these employees are allowed to reside and work lawfully in the Netherlands.

Article 15 paragraph 1 of the Foreigners Employment Act (Wav) contains the following stipulation: When an employer allows a third-country national to perform work for another employer, the former must provide the other employer with a valid travel document and a copy of the valid residence permit and/or a copy of the valid work permit. Paragraph 2 of this same article subsequently stipulates that the employer where the work is carried out must and may include these documents in the administration.

Please note that there is another exception for Turkish nationals. Although the client is required to check at all times whether these employees have a valid residence permit and/or a valid work permit, they are not allowed to include a copy of this in their administration. This is a consequence of the Association Treaty between the European Union and Turkey, which we will also be devoting a blog to shortly. This approach bears similarities with the way in which the identification obligation of agency workers from within the EU/EEA must be dealt with, with the addition that the employer must reverify as soon as the initial residence document and/or work permit ceases to be valid.

Anonymous rate

It is striking that many payroll administrators are under the impression that they play no role in a compliant implementation of the identification obligation. After all, these checks should already have been carried out before the start of the work and are often assigned to the HR departments and personnel administration. Nevertheless, salary administrators also have an important role to play, namely that of gatekeeper. This role is nicely described in Article 26b of the 1964 Wage Tax Act. This article states that the anonymous rate should be applied in the absence of a valid residence permit and/or work permit (among other things).

While many payroll software already check for the absence of a BSN, causing the payroll administrator in question to receive a notification that the anonymous rate must be applied, most organisations do not give this notification for the absence of a valid residence permit and/or work permit. And if there is such a notification, what is the action that follows? Ideally, it should not be the application of the anonymous rate, but an active notification to HR and/or the personnel administration that, based on the available information, the employee in question may not perform work.

Payroll administrators not only play an important role in the compliant implementation of the identification obligation on the work floor, they also have a key role in the correct processing of, for example, the hours of international students with a part-time job. This specific purpose of stay will be discussed in our next blog, together with the purposes of stay for 'work as an employee' and 'search year'.

Do you have any questions about this topic? Please do not hesitate to contact David Wernsing.  He is happy to assist you!