In the Polish legal system, giving work to a foreigner who has not been authorised to undertake it, entails a liability for the employer. At present, Article 120 par. 1 of the Act on the Promotion of Employment and on Labour Market Institutions envisages a fine for illegally employing a foreigner. The fine may range from PLN 1,000 to PLN 30,000.

Amendments are now being planned to limit the extent of an employers’ liability, by changing the requirements for liability under this petty offence. The proposed amendments have been accepted by the Council of Ministers and are currently at the consultation stage.

Problems of employers

Employers have been pointing out numerous difficulties in applying, in practice, the regulations on employing foreigners. Employers often do not have the powers, tools, or resources to properly assess the legal situation of foreigners. They find that the requirement of complying with a range of obligations in order to verify the legality of a foreigner’s right to stay and entitlement to work legally in Poland, constitutes an excessive administrative burden.

In addition, due to the significant number and scattered array of provisions on employing foreigners in various legal acts, employers sometimes fear that even a minor infraction identified during an inspection of legal employment may be deemed to be illegal employment.

Extent of the changes

The proposed amendment to the Act on the Promotion of Employment envisages that liability for an offence involving the illegal employment of a foreigner will only occur if the employer acted intentionally. So far, liability under the Act applied to cases of both intentional and unintentional provision of work to a foreigner, which led to employers having doubts regarding interpretation.

Proposed amendment as a response to employers’ problems?

The amendment of Article 120 par. 1 of the Act on the Promotion of Employment is a response to signals from groups of employers who have been pointing out the complexities in the process of employing foreigners. It aims to partly limit the liability of employers to cases involving acting with intent.

The introduction of the requirement of intentionality as a condition of liability for illegally employing a foreigner, is a step towards liberalising legislation and mitigating the significant burden borne by employers. As a result, the employment of foreigners may become more accessible, and employers’ liability will be limited to cases in which the entrusting entities acted with the full knowledge of their conduct’s illegality.

Assessing the proposed amendments

The proposal to limit liability for illegally giving work to a foreigner is a step in the right direction. It benefits employers and the general functioning of the labour market. The amendment does not, in general, affect the legality of foreigners’ entry into Poland, their stay or their general eligibility to work. Instead, the introduction of intentionality as a condition for liability reduces the risk of employers being unfairly penalised for mistakes that have arisen inadvertently or due to complicated existing regulations.

Katarzyna Sawicka

Wojciech Górski