The events of the recent months show that the popularity of work outside the official place of employment continues to grow not only among Czech, but also among foreign employees, of course. What are the pitfalls that employers who employ foreigners from outside the EU/EEA/Switzerland may encounter? We will discuss this topic in the following article.
Vacancy report and labour market test
In the event that an employee holds a dual employment or blue card, the employer must first include a new job in the register of vacancies at the employment office using the vacancy report. One of the compulsory requirements of the vacancy report is the “place of work”, which can be both the specific address where the work will be carried out and the city, multiple cities or, in justified cases, the whole Czech Republic. In the event that a foreigner is to have more than one place of work, the regional branch of the employment office shall discuss his/her employment with the regional branch of the employment office in whose district the employment is also to be carried out. This labour market test, which normally takes 30 days (in the case of certain positions, the period can be reduced to 10 days), is then carried out even when the residence permit is extended. In the event that one of the relevant branches of the employment office assesses that the employment of a foreigner in the relevant region is not desirable due to the high unemployment rate in the given field, it will not grant its consent and the Ministry of the Interior of the Czech Republic will therefore reject the application for granting/extending the residence permit. From this point of view, referring to more places of work can bring significant complications that can lead to the termination of the employment of a foreigner.
On the other hand, some branches of the employment office insist on providing the particular address of the place of work. This can have negative consequences in the case where a foreign employee is often sent on business trips e.g. even within one city. Once he/she has not been reached by the inspection from the State Labour Inspection Office at the exact address indicated in the report and at the same time does not meet the parameters of the business trip described below, the supervisory authority may conclude that this is an illegal employment.
Work from home
As a result of the epidemic situation, many employees resort to work from home (the so-called home office). If the work is carried out from home, the employer must have a process agreed with their employees by means of which the place of work will be registered with the employer. The employer should therefore have information on the address at which the work takes place from the employee’s home.
From the point of view of the Employment Act, the Home Office is not considered to be in breach of the issued permit/visa/residence permit due to the performance of work in a place other than that permitted and is not subject to authorisation or notification obligation. On the contrary, it is one of the advised and recommended emergency measures at the time of the threat of the coronavirus, which can also be used in the case of a foreigner with a work permit or an employee/blue/ICT card issued for another place of work.
If you pay employees compensation for the home office (i.e. in addition to the wage tariff), it does not count towards the income necessary for obtaining a residence permit e.g. for family members or for obtaining permanent residence in the Czech Republic.
Change of the place of work
If a foreigner holding an employment card plans to change the place of work (as well as the job title or employer), the employer also needs to include this new post in the register of vacancies of the employment office using the vacancy report. Here, too, there must be a labour market test. The change itself must then be notified to the Ministry of the Interior at least 30 days in advance, using a special form and by documenting the relevant documents, in particular a new employment contract or amendment.
Please note that in the case of holding the first employee card, the change can only be notified after 6 months after the decision to issue the first employee card has become final. At the same time, there is no possible change to the employer which is an employment agency.
Even in the case of blue cards, these changes are subject to the same procedure, i.e. it is necessary to enter a position in the register of the employment office and have a prior approval by the Ministry of the Interior, but only during the first 2 years of stay. In the following years, the foreigner is obliged to notify the Ministry of this change within 3 working days.
Sending a foreigner on a business trip
Departure from the official place of work occurs most often when the employee is sent by the employer on a business trip. Pursuant to Section 42 (1) of the Labour Code, the business trip means “the time-limited posting of an employee by the employer to work outside the agreed place of work. The employer may send employees for a business trip for the period of necessary need only on the basis of an agreement with him/her. An employee on a business trip shall do the work in accordance with the instructions of the managing employee who sent him/her on the business trip.”
At the same time, the following conditions must be met in order for an employee to be sent on a business trip:
- Business trip must be limited in time.
- The employee continues to perform work according to the instructions of his/her employer.
- The obligations imposed by the Labour Code, in particular part seven, and the provision of travel allowances must be fulfilled.
- The business trip must correspond to the nature of the work performed for which an employee or blue card has been awarded.
If the above conditions are not met, the work activity of the foreigner during the inspection by the State Labour Inspection Office may be considered as the common and long-term performance of work outside the region for which the residence permit has been issued or extended to the foreigner after assessing the local situation on the labour market. This can then be classified as illegal work, where the penalty for employers reaches up to CZK 10 million and, at the same time, foreigners are threatened with administrative expulsion for up to 5 years.
Resources used in the preparation of the article:
KOLIBAČ, Richard. Coronavirus and answers to frequently asked labour-law questions. State Labour Inspection Office [online]. [cit. 2020-08-31]. Available from: http://www.suip.cz/novinky-suip/koronavirus-a-odpovedi-na-nejcastejsi-pracovnepravni-dotazy/?q=prace%20z%20domova
HAVRAN, Radek. Sending a foreigner on a business trip as a dissimulated legal action. Bulletin of the State Labour Inspection Office no. 4/2015 [online]. 2015, 2015(4), 2 [cit. 2020-08-31]. Available from: Sending a foreigner on a business trip as a dissimulated legal action