Requirement for Foreign Employees to Work
The immigration system in Italy varies depending on whether the worker is an EU citizen or not. As a matter of a fact, EU nationals are entitled to work in Italy without any work or residence permit: there are no numerical thresholds, and the employees are not subject to any peculiar immigration procedure. Instead, according to Legislative Decree no. 286 of 25 July 1998, nationals of non-EU countries who wish to work legally in Italy require both a residence permit and a work permit. Every year, to this extent, a special decree establishes the maximum number of non-EU citizens who may enter into contracts of employment in Italy. Nevertheless, such discipline of annual quotas does not operate for the hiring of workers intended to perform certain special activities (such as, translators and interpreters; journalists; university professors) or for particularly skilled workers.
Does a Foreign Employer need to Establish or Work through a Local Entity to Hire an Employee?
No, it does not. The foreign company wishing to hire an employee in Italy, without having to establish itself in one of the corporate forms provided by the relevant legislation, has at its disposal the possibility of operating with a representative office, intended as a regular office, which performs purely promotional and advertising, information gathering, scientific or market research functions. The representative office must perform an auxiliary or preparatory activity to the penetration of the company into the target market: such structure does not allow for production or sales activities that could qualify it as a permanent establishment (i.e. “stabile organizzazione”).
A non-resident company, however, has the opportunity to employ a worker in Italy even without operating through a representative office. In such scenario, the foreign company can appoint a so called “fiscal representative” resident in Italy (usually, a professional or a payroll consultant) in order to fulfill the social security and insurance obligations arising from the performance of the working activity of the personnel to be hired.
The non-resident company must thus grant a mandate to the appointed Italian “fiscal representative” so that this can fulfill the obligations in the company’s name and on its behalf with the social security and insurance institutions (INPS and INAIL).
Limitations on Background Checks
Section 8 of Law 300/1970, the so-called Workers’ Statute, prevents the employer from investigating – also through third parties – the political, religious or trade union opinions of a prospective employee, as well as facts or circumstances that are not relevant to assess his/her professional aptitudes (such as, nationality, age, sexual orientation etc..).
Thus, the mentioned provision prohibits any investigation aimed at collecting information that may then trigger discriminatory conducts: therefore, any investigation about such aspects of the employees’ life shall always be prohibited, as well as any investigation of facts that cannot be objectively used to evaluate the employees’ skills, competence, experience, and suitability with the specific duties to be carried out eventually.
In addition to the above, under Section 5 of the Worker’s Statute, employers cannot directly perform checks in order to verify a potential workers’ physical suitability. However, such assessments are allowed if they are carried out by the occupational doctor aiming at verifying the employees’ physical capability to perform the duties required for the job to be assigned. In this sense, employers may not hire potential candidates who did not undergo to the medical examination executed by the occupational doctor as this is mandatory under the applicable Italian law.
Moreover, employers can test for drug and alcohol use and/or addiction if the employees’ duties involve risks to the security, safety and health of third parties.
Any kind of examination is not permitted to verify whether a prospective employee could be pregnant.
Finally, pursuant to Italian legislation, it is not possible to carry out formal credit checks for recruitment purposes, since they violate the prospective employees’ right to privacy (Legislative Decree no. 196 of 30 June 2003, as amended by Legislative Decree no. 101 of 10 August 2018).
Restrictions on Application/Interview Questions
In Italy there is no specific regulation on interviewing for a job position outside the public administration nor specific regulation on hiring procedures. The relevant questions, however, have to be maintained within the scope of investigation highlighted above, avoiding any form of discrimination. As a matter of a fact, by way of mere example, the employers are prevented from asking any kind of questions regarding sexual orientation, gender identity, etc of the potential worker. The employer however could ask to the prospective employee to bring references from his/her former employers