HR, Payroll and the employment of third-country nationals

Migration law is often underexposed withing organisations and a best practice on how to deal with third country nationals is lacking in many cases. While many organisations employ at least one third country national! What should you pay attention to? Miriam Berendes-Currey and David Wernsing list some important points.

HR & Payroll is implemented in various ways within companies. For example, there is recruitment, personnel administration, and payroll departments.

Each department plays an important role in the compliant implementation of the laws and regulations that apply to all employers. We also speak of the '5 elements':

• Labour Law;

• Tax law;

• Social security;

• Pension; and

• Migration law.

The vast majority of organisations are aware of the first 4 elements and have designed their internal processes accordingly. The 5th element – migration law – is often underexposed and a best practice on how to deal with third country nationals is lacking in many cases. While many organisations employ at least one third country national. ‘Employing’ is defined very broadly under the Dutch Foreigners Employment Act (‘Wet arbeid vreemdelingen’) - for every person who performs labour for your organisation, your organisation is the employer.

Particularly for parties involved in such a chain (and thus not necessarily the formal employer), this significantly increases the risk of being fined in case of unexpected illegal employment of third-country nationals. After all, it is not always within your control and to a large extent it also escapes your field of observation.

A concrete example: your organisation hires a window-cleaning company that sends an illegally employed temporary worker to you to clean the windows. With an unerring sense of timing, the Dutch Labour Inspectorate is on your doorstep. Both the window cleaning company, the temp agency and you will be fined for illegal employment.

As an HR & Payroll professional, how do you know what conditions your employee must meet and what (additional) obligations you have as an employer? To determine that, it is important to know who has to meet which conditions.

As an HR & Payroll professional, how do you know which conditions your employee must meet and which (additional) obligations you have as an employer? In order to determine this, it is important to know who has to fulfil which conditions.

When speaking of the employment of third-country nationals, many people refer to labour migrants who are brought to the Netherlands by the employer himself. While this only concerns a limited share of the third country nationals employed in the Netherlands. But who exactly is a third-country national?

"A third-country national is a person with a different nationality than that of one of the member states of the European Union, Norway, Iceland, Liechtenstein or Switzerland."

This includes persons who have a residence permit for a purpose other than employment. Examples are international students, asylum seekers, self-employed persons, staying with a partner or family and those holding a permit for search year. For this group of employees too, there are specific points of attention for both the personnel and salary administration. The different conditions per purpose of stay can have an influence on the amount of salary to be paid, the maximum number of hours that may be worked, which documents need to be included in the administration and which authority needs to be informed at a various moments. All conditions derived form the labour market connotation on the back of the residence permit.

And what if the labour market endorsement states 'Work as an employee. Work freely permitted. TWV not required'? Secretly, for an employer, this has more conditions attached to it to prevent illegal employment than the description would initially suggest.

Are these reasons to refrain from employing third-country nationals? No, definitely not! At a time when diversity and inclusion are high on the agenda of many organisations, this group of employees is an enrichment for your organization. On top of that: with the amount of vacancies there are even more opportunities for organisations. For example, HR & Payroll professionals also get the chance to develop within specialized work field in a society that is becoming increasingly internationally oriented. All the more reason, therefore, to embrace this group of employees and to integrate the legislation and regulations into the work processes.

In the coming weeks, the blogs will delve deeper into a number of components that are relevant to the employment of third-country nationals. Next week's focus will be on the obligation to identify third-country nationals.

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