For some positions, a foreign employee seems the most suitable, but how do you tackle this? Is it permissible to simply bring employees from abroad to the Netherlands? In this article I briefly outline a 5-step plan.
Step 1. EEA employee? No: apply for a work permit
Firstly, it is important to know whether it concerns an employee from the European Economic Area (“EEA”). Incidentally, an employer is obliged to first recruit employees within the EEA or Switzerland. A list of EEA countries can be found on the website of the national government (https://www.rijksoverheid.nl/onderwerpen/europese-unie/vraag-en-antwoord/welke-landen-horen-bij-de-europese-economische-ruimte-eer).
It is important to know whether there is an EEA employee, because an employer will usually have to apply for a work permit for an employee who comes from outside the EEA. On the basis of the identity card of the employee, determine whether a work permit is required. There are two types of work permits: the work permit (“TWV”) and the combined permit for residence and work (“GVVA”). The difference between these work permits refers to the duration of the work. For both work permits, the same requirements apply to which the UWV WERKbedrijf (“UWV”) will test. For these requirements, see:
If an employee from outside the EEA is employed without a work permit, there is illegal work.
Step 2. Take care of housing
Then, as an employer, you are obliged to provide clean and safe accommodation for the foreign employee. This applies to both an employee from inside and outside the EEA. With regard to accommodation, the requirements of the municipality concerned must be met.
Step 3. Request BSN number
If the employee does not have a BSN number, the employee must request this from the Tax Authorities himself. As an employer, you need the BSN number.
Step 4. Close employment contract
Conclude an employment contract with the employee. The first question that needs to be answered is with which entity the employee will enter service. The questions then arise which law applies to the employment contract and where wage tax and social insurance contributions will have to be paid. The starting point with regard to wage tax and social security contributions is that these must be paid in the Netherlands if the employee lives and works in the Netherlands. This can be different if it is a temporary broadcast.
Under European law, the parties may make a choice of law and thus choose which law applies to the employment contract. However, this choice can not simply lead to the employee losing the mandatory protection of the law that had been applicable under the following main rule.
This main rule is that the employment contract is governed by the law of the country where, or from where, the employee usually performs his work. This also applies if the employee is temporarily employed in another country. If the employee does not usually perform the work in one country, the law of the country of the employer’s establishment that the employee has employed is applicable. The only exception to this main rule is the situation that “from the whole of circumstances” it appears that the employment contract has a manifestly closer connection with another country. In that case, the law of that country applies. This is called the expat clause, now that the classic expat is the most common situation in practice with this exception.