Requirement for Foreign Employees to Work
Every foreign person needs a special permit or ´VISA´ to perform his services in Colombia. The requirements for a foreign employee to perform his services in Colombia was recently changed by the 6045 Resolution of 2017. To determine which category or special permit must be requested for the potential foreign employee, it is important to establish whether the service to be performed by the foreigner is temporary (short duration) or permanent (long duration). However, there are special considerations for foreign employees who have a proper resident VISA. A work permit for a foreign employee which was recognised for this sole purpose, only allows the employee to perform the services for the position, company and/or profession wherewith the VISA was authorised.
Does a Foreign Employer need to Establish or Work through a Local Entity to Hire an Employee?
In application to the principle of reality over the formalities, a local entity is not needed to consider the existence of an employment contract. A local entity may need to be established in Colombia to comply with certain obligations regarding contributions to the social security system.
Limitations on Background Checks
Express prohibitions over background checks in the legislation include the following:
- HIV tests or conditions.
- Pregnancy test.
- Mandatory military service approval.
- Unionised condition.
- Diseases or disabilities.
In general, it must be said that any background check that might be considered discriminatory is prohibited, unless and objective justification is proven.
Also, data protection legislation (the 1581 Act of 2012) provides certain restrictions over the information potential and former employers can publish about candidates and former employees.
Restrictions on Application/Interview Questions
Employers are prohibited from asking any question that may be considered discriminatory. Any question or restriction on the application of a candidate regarding his age, sexual orientation, civil status, religious beliefs, political opinion, language, race, diseases, unionised condition or any other consideration that does not have any relation with the position to be performed, and might lead to a discriminatory ground, must be avoided. In particular, employers are forbidden from asking potential candidates to perform HIV and/or pregnancy tests as a condition for the application, unless this condition is proving to be incompatible with the position the person applied for.