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 the possession of a work permit (single permit), although some categories of employees are exempt from this requirement or benefit from relaxation. The following categories of employees are exempt (non-exhaustive list):
- Spouse of Belgian or EEA nationals under certain conditions;
- Persons employed within the framework of a service agreement between two EEA-member companies;
- Foreign managerial employees coming to work in Belgium, if they are employed by the Belgian head office (i.e. under a local employment contract) and if their gross annual salary exceeds a certain amount;
- Foreign employees sent to Belgium by their foreign employer to attend academic conferences or closed meetings (‘business trips’), provided they do not stay in Belgium for more than five days in one month;
- Foreign employees sent to Belgium by their foreign employer to receive intra-group classroom training, provided that the training does not exceed three months;
- Research workers sent to Belgium to carry out research with a recognised research institute as part of a visiting The exemption is limited to the duration of the research project as laid down in the visiting agreement between the subject and the institute.
To obtain a work permit, an official application form accompanied by a set of prescribed documents has to be sent to the regional work permit authorities. Prior to the foreign employee entering Belgian territory, the employer must obtain an employment authorisation from the competent regional minister. Once the employment authorisation is granted, a type-B work permit will automatically be granted to the foreign employee. Both the work permit and the employment authorisation documents have to be obtained prior to the commencement of any activities in Belgium. In practice, both applications are filed at the same time by the employer or his/her agent. Depending on the foreign national’s country of origin, he may need a visa in order to have access to the Belgian territory. Moreover, at his/her arrival, the foreign employee must also apply for a Belgian residence permit (foreign identity card A).
The new Act of 9 May 2018 has implemented the EU ‘Single Permit’ Directive 2009/52, which obliges the Member States to use a single application procedure to establish the issuance of a single permit for residence and work to non-EU nationals. The single permit procedure is in force since 1 January 2019.
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 motorized 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 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, yet some occupations (e.g. in the security sector) request this when it could be relevant to the work. Employers can ask for these records, but are not allowed to process them.
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.
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.