Requirements for Foreign Employees to Work
In principle, every employee who would like to work in Germany requires a residence title and a work permit before entering Germany. This does not apply to persons who are: 1) of German nationality; 2) a European Union national; 3) a national of a European Economic Area (EEA) member state (Iceland, Liechtenstein, Norway); or 4) a national of Switzerland. Such title is generally only granted if the employment agency agrees or such consent is not required due to statutory regulations. The employment agency examines whether the job offer may not be filled by the German employment market including EU and EEA nationals or foreign nationals with an unrestricted residence permit (“job market test”) and that a concrete job offer with usual working conditions exists. The permit for taking up employment is awarded together.
With the implementation of the European ICT Directive through German legislation, intra-group transfers have been facilitated. As of 1 August 2017, non-EU citizens can, under certain circumstances, be entitled to a new residence title “ICT-Card”, which allows them to work for a German group entity for up to three years. This is possible if they have been posted by another group entity from outside the EU. Moreover, third-country nationals already residing and working in another EU member state, based on the ICT Directive, can apply for a “Mobile ICT-Card” if they need to be posted to Germany for a period longer than 90 days. In case of a short-term assignment (i.e. no more than 90 days within a 180-day period) no residence title will be necessary at all; the competent authority (i.e. the Federal Office for Migration and Refugees) just needs to be notified. Hence, third-country nationals can work in different EU member states under a single permit.
Does a Foreign Employer need to Establish or Work through a Local Entity to Hire an Employee?
No. The employer will, however, be obliged under the statutory social security system to appoint a contact person in Germany, which can be an employee.
Limitations on Background Checks
There are no specific statutory regulations on the legitimacy of background checks carried out by a private employer. However, there is complex case law on the question of which information an employer may legitimately request from a job applicant during the course of a job interview, which can be considered as a benchmark for the legitimacy of background checks, using other sources than the applicant. In essence, employers may only request such information that has a direct relation to the applicant’s future tasks and responsibilities in the particular job in question. Therefore, the employer’s right to carry out background checks without the employee’s consent is very limited
Restrictions on Application/Interview Questions
Nearly every employment relationship requires an application process. The employer has a significant interest in receiving as much information as possible about the future employee. Especially due to the protection of the privacy of the employee, there are, however, a lot of restrictions for the employer during the hiring process in Germany.