Requirements for Foreign Employees to Work
Foreign employees from outside the European community, including self-employed individuals, must obtain an administrative authorisation, or work permit, to work in Spain. The work permit may be requested at the Immigration Bureau.
Does a Foreign Employer need to Establish or Work through a Local Entity to Hire an Employee?
When a foreign employer wants to hire a local employee in Spain, it must take charge of all the obligations related to the employee, such as the social security contributions and the income taxes. There are essentially two ways that a foreign company can hire employees in Spain. First, there is a possibility of setting up a company (subsidiary or branch) in Spain and hiring employees through it. The set-up process consists of establishing a fixed base of business in Spain, to develop an activity, and grant a Public Deed before the Public Notary. Tax laws require a legal representative resident in Spain, as well as a Digital Certification, in order to work with the Spanish Tax Agency. The company in Spain will have several other obligations as well. Second, in contrast to the first option and only when certain requisites are met, the foreign company may have a legal representative in Spain (representation office). The legal representative in Spain must be a Spanish resident (individual or company) and it will be responsible for ensuring compliance with taxes, and the social contribution system payments of the foreign company in Spain, as these cannot be carried out directly by the foreign legal entity.
Limitations on Background Checks
Information regarding criminal records is confidential and public disclosure is prohibited as it could violate data protection regulations. Additionally, there is a general prohibition forbidding discrimination against any employee, for any reason, either before or after being hired. In addition, access to the Central Registry of Convicts will only be allowed for certain state agencies, judges and courts, as well as the judicial police, when there is such a requirement. Therefore, the employer cannot obtain such data unless the candidates or the employees provide the data voluntarily. As an exception to the general prohibition mentioned above, there are certain sectors whereby there exists a legal obligation that entitles the employer to request and proceed with background checks: Public Administration, the state/local police, the army, managing members of financial institutions, insurance agents, professionals who work with minors and casinos.
Restrictions on Application/Interview Questions
By a series of strict regulations and case law on the prohibition of any type of discrimination as well as a prohibition, as a general rule, on requesting candidates to submit personal data that is not directly related to the needs of the job they are opting for. However, in principle, it is indeed legitimate for the employer to use such information as long as it is public, unrestricted and available to anyone. There are no general guidelines that can be used to guarantee that the fundamental rights of the candidate will in no way be breached when extracting information from social networks. The employer is allowed to ask any question necessary, provided that it is reasonable and objective, and pertains to the job being offered. For example, requests for a candidate’s minimum height and age could be necessary and objective for a flight attendant position.