Requirement for Foreign Employees to Work
European treaties provide for the free movement of persons within the European Economic Area (European Union and Iceland, Norway and Lichtenstein – EEA). This means that employees who are citizens of one EEA Member State are, in principle, free to work in another Member State without a work permit.
In principle, every non-EEA national working in Belgium must be in possession of a work permit, although some categories of workers are exempt from this requirement (e.g. students or spoused of EEA nationals). In 2019, Belgium introduced the single permit, which combines the work permit and the residence permit into one single procedure. The single permit has to be applied for in Belgium by the employer or an agent, and the employer must obtain prior authorisation to employ the foreign worker. The necessary documents have to be sent to the competent department of the Region where the worker is posted (where he will carry out his work).
The access to the single permit procedure is restricted to certain categories of workers, which are enshrined in the regional regulations. Most important for the majority of employers, are the categories of highly skilled workers and managerial employees. This means that the employees have to fulfil certain conditions of higher education degrees and higher wages or they have to take up certain leading functions within the company. As said before, the specific conditions to be fulfilled and the necessary documents which have to be submitted are laid down in legislation of the Regions, but in general the following documents will be necessary for posting non-EEA workers:
- copy of the passport of the worker
- copy of the degree(s) of the worker
- recent criminal records of the worker
- recent medical certificate of the worker
- employment contract between the posting company and the worker
- proof of health insurance coverage
- proof of the payment of the administrative fees
- power of attorney for the agent of the foreign employer
These documents have to be submitted together with the regional application form (signed by the employer and the employee). These application forms will only be in Dutch or French. Submitting English documents is allowed, but documents in other languages should be translated by an official translator.
The regional department of work will first check whether the application is complete. The department will notify the employer within 10-15 days if the application is admissible. If not, the employer has 15 days to submit the missing information or documents. If the application is complete, the department of work will send the application to the Federal Foreigners Office. Then the Department of work and the Foreigners Office have a maximum of 4 months (after the decision of admissibility) to decide upon, respectively, the permission to work and the permission to stay in the Belgian territory. If both decisions are positive, the Foreigners Office will notify the employer and the employee and it will send the necessary visa to the diplomatic post or to the municipality where the employee is staying. If the Foreigners Office’s decision is negative, an appeal is possible before the Foreigners’ Litigation Council (administrative court). If the decision of the department of work is negative, an appeal is possible before the competent regional minister of work. An ultimate appeal in both cases is possible before the Council of State.
Employing a foreign employee on the Belgian territory, when he does not have a single permit is a serious crime, for which the employer can be punished with a penal fine of 4.800 to 48.000 euro, an administrative fine of 2.400 to 24.000 euro or imprisonment of 6 months to 3 years.
Does a Foreign Employer need to Establish or Work through a Local Entity to Hire an Employee?
A foreign employer does not need to work through a local entity in order to hire employees in Belgium. However, there are a couple of registrations and formalities to be fulfilled by the foreign entity, including registration at the National Social Security Office (NSSO), registration at the Tax collector’s office, conclusion of an industrial injuries insurance, and appoint an authorised officer to keep the required employment documents and receive official correspondence from the NSSO. In general, foreign employers join a Belgian pay roll agency, which can handle most of these requirements on behalf of the employer and will act as spokesperson with regard to the social security and tax authorities.
Limitations on Background Checks
Extensive background checks on employees are not common in Belgium. They should be limited to the strict necessity of assessing the applicant’s professional skills relevant to the job offered. The most common background checks relate to education, experience (past employment records), criminal records for certain occupations (e.g. in the security sector), confirmation that the applicant has the appropriate permission to work in Belgium, health and medical checks (which are required by law for roles involving safety, vigilance jobs that come in contact with food, or the driving of motorised vehicles, cranes or hoists); and more and more commonly, social media checks, despite the potential that such searches can come into conflict with the right to privacy of the applicant. However, a lot will depend on the public status of the information.
Nothing prevents an employer from checking publicly available information on social media. If the access to this information is restricted, the information becomes of a certain private nature. If background checks are in conflict with the privacy rules of the GDPR, heavy administrative fines and other sanctions could be imposed on the employer. According to the Medical Tests Act, Biological, medical tests or the gathering of information, which have the objective to obtain information on the state of health or information on the genetic inheritance of an applicant, are only allowed if they are directly linked to the specific needs of the offered position. However, predictive genetic tests and HIV-tests are expressly prohibited, always.
The general rule, laid down in CBA no. 38, is that the information obtained can only be used if it is relevant to the job (relevance criterion). This is arguably the case for education records and experience (past employment records) checks. Applicants are sometimes asked to give persons of reference from previous jobs in order to ask them to evaluate the performance of the applicant. Employers can only contact these persons with the consent of the applicant.
It is less common to check the criminal records. In general, this is allowed for regulated professions which are listed by the Federal Public Service of Justice; which concerns, e.g. security agents, private detectives, taxi drivers, real estate agents, etc.
Restrictions on Application/Interview Questions
Employers are forbidden by law, or restricted by CBAs, from asking certain questions of applicants or requiring them to undergo certain tests. The purpose of background checks must be to assess the applicant’s ability to perform the job. As a rule, an employer can only ask questions to an applicant that are genuinely relevant, taking into consideration the nature and working conditions of the job offered (such as diplomas, previous jobs, etc.).
The applicant has the right not to answer questions that are not relevant for the job or violate privacy and anti-discrimination laws. However, it is worth noting that applicants have an obligation to cooperate in good faith during the selection process. An applicant is not only bound to answer the employer’s relevant questions, but should also spontaneously provide the employer with all relevant information that he/she might be expected to know, and which would be important to the employer. In case an applicant provides false information, the employment contract could be terminated for serious cause based on error or deceit. However, this is only the case when the false information is relevant to the application procedure (for example, the applicant does not have the required diplomas or hides medical information that could endanger himself or a co-worker).
It is generally accepted that an employer can submit applicants to certain tests in order to obtain information about their abilities if these tests are job-relevant (for example, tests with regard to the use of computers and various software, personality and IQ tests which the former Belgian Privacy Commission recommends to be carried out under the responsibility of a psychologist or, if the applicant agrees, by a person who has been properly trained by a psychologist to administer the tests). Practical tests may not take longer than the time required to test the applicant’s competence. The results of the tests must be kept confidential and the processing of the obtained data requires the applicant’s approval.
As a general rule, the employer may not ask questions about an applicant’s credit and financial background. The general anti-discrimination Act of 10 May 2007 prohibits any discrimination based on personal wealth. Belgian law does not allow recruiters to have access to the financial information of applicants.