Requirements for Foreign Employees to Work
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. 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.
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. 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/financial background, and any discrimination based on personal wealth is prohibited.