Recruitment of a foreigner and personal data - what you can and should ask the candidate about and at what stage? - Labour and employment law blog

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Recruitment of a foreigner and personal data - what you can and should ask the candidate about and at what stage?

For a recruiting employer, a candidate’s professional competence is crucial. Equally important, however, is sometimes the timing of starting work.

The start date is affected not only by the notice period for the candidate's current employment. In the case of candidates who are citizens of third countries (i.e., outside the European Economic Area or Switzerland), the need to legalize their stay and work in Poland matters.

Legal employment in such cases requires assurance of:

  • legal residence (usually at the discretion of the foreigner),
  • legal work in Poland (usually on the side of the employer).

Administrative procedures, depending on the authority responsible for the case, sometimes take many months (on average 1-3 months for work permits and 4-12 months for residence permits). Such a period should therefore be taken into account when considering a foreigner's candidacy. An exception to this are declarations of entrustment of work to a foreigner (available to citizens of Armenia, Belarus, Georgia, Moldova, Russia and Ukraine), the registration of which takes place, as a rule, within 7 working days.

Candidate-foreigner – what to know?

First of all, it is necessary to know the citizenship of the candidate-foreigner, but this is not enough. In order to determine what (possible) additional formalities employment would entail, it is worth checking, among other things, the basis on which the foreigner currently resides in Poland and whether he or she has completed education or is currently studying in Poland.

Both statutory and regulatory law provide a number of exceptions to the general rule that a third-country national must have a permit to work in Poland. Such permit is not required, among others, for:

  • persons holding a permanent residence permit or permit for long-term EU residence permit,
  • full-time students studying in Poland,
  • citizens of Ukraine, who:
    • legally reside in Poland on the basis of a valid residence title,
    • arrived in Poland from 24 February  2022 and declare intention to stay in Poland;

- it then suffices for the employer to submit a notice of employment to the district labor office within 14 days of taking up employment.

The exception for citizens of Ukraine stems from the Law on Assistance to Citizens of Ukraine in Connection with the Armed Conflict in Ukraine.

Can a candidate be rejected due to the need to legalize his or her work? 

An employer cannot explicitly state in recruitment advertisement that the offer is directed only to Polish or European Union citizens or other selected nationalities. Such an announcement would constitute prohibited employment discrimination. Also, other forms of addressing an offer only to a strictly selected group, if not justified by the type of work, should be considered unacceptable. Therefore, it is not appropriate, for example, to formulate an offer of employment exclusively in a foreign language known to a narrow circle of recipients, or to set requirements completely incompatible with the real needs of the employer for a given job, thus giving an advantage to candidates of a certain nationality.

This does not mean, however, that an employer cannot refuse a third-country national further participation in the recruitment process for the sake of necessary legalization procedures. An objectively justified criterion should be considered, for example:

  • economic and business considerations that require the new person to start work immediately (which is often impossible in the case of foreigners),
  • no familiarization of the employer with procedures on the legalization of work of foreigners on his behalf,
  • lack of budget to hire external consultants in this area.

At what stage of recruitment can information on the legalization status of residence and work be obtained?

As is evident, it is in the interest of the employer to obtain data as soon as possible to assess the legalization status of the candidate's residence and work in Poland. How does this look on grounds of data protection regulations?

The Labour Code lists data that a prospective employer may request from a job candidate. It does not include data on citizenship or other data affecting legalization issues. Nevertheless, according to the Labour Code, an employer may demand other personal data than that specified in this list if necessary to exercise a right or fulfill an obligation under a provision of law. It seems that such "other personal data" may be precisely data on citizenship and possible exemptions from the work permit requirement. After all, how else can an employer meet the obligation to verify the document entitling a foreigner to stay in Poland before starting work, as required under the Act on the Effects of Illegally Hiring Foreigners Residing in the Republic of Poland?

It is also difficult to imagine that an employer can, without having such data, fulfill legal obligations related to the legalization of employment, such as filing an application in connection with intent to hire a foreigner. Nevertheless, it is worth remembering that in order to avoid the charge of processing data without a legal basis, this type of data should be collected only at an advanced stage of recruitment, not from all candidates at the stage of submitting a resume.

How long can a candidate's personal data be kept?

According to the GDPR, personal data should not be kept longer than is necessary for the purposes for which data is processed. There are no legal regulations specifying a specific maximum storage period for candidate personal data obtained during recruitment. However, the President of the Office for the Protection of Personal Data ("POPPD") takes a strict stance, according to which, as a rule, personal data of a candidate who has not successfully passed the recruitment process for a given position should be deleted immediately after the end of recruitment. In practice, employers often keep such data for three months or so, and for up to one year if they obtained the candidate's prior separate consent to process personal data for possible future recruitment.

Significantly, last year (in a verdict dated August 4, 2022, II SA/Wa 542/22), the Provincial Administrative Court in Warsaw overturned a POPPD decision in which a warning was issued to an employer for unjustified (in the POPPD opinion) processing of a female candidate's data after the recruitment process was completed. Although this judgment was issued in a specific case, the position expressed therein may have a significant impact on all recruitment processes and the application of data protection regulations. If the line of jurisprudence and practice of the supervisory authority continues in this direction, the view presented in the judgment would give grounds to assume that it is permissible to also store candidate data after the completion of recruitment for the statute of limitations for possible claims of unequal treatment / discrimination.

Aleksandra Wójcik, Karolina Romanowska