Labor legality of citizens of ukraine who are under temporary protection in Poland

Prepared by the Rule of Law Institute Foundation at the request of the Danish Refugee Council

July 10, 2023

Legal basis

The employment of third-country nationals in Poland is regulated by the Law on Foreigners from 2013 and the Law on Promotion of Employment and Labor Market Institutions from 2004.

According to these laws, as a rule, employment of a foreigner is possible if the foreigner is legally present in the territory of the Republic of Poland (RP) and has a work permit. Work performed in Poland by foreigners who are required to obtain a document legalizing employment may be performed on the basis of:

• notification of assignment of work to a foreigner,
• declarations on assignment of works
• type A, B, C, D, E, S work permit.

In the Polish legal system there are certain exceptions to this rule, e.g:

• the foreigner has a Polish card or the status of a full-time student (which, provided the foreigner is legally staying in Poland, allows the foreigner to get a job without the need to obtain a work permit),
• possession of a foreigner's permanent residence permit (certificate), long-term residence permit of the European Union (EU) or other residence permits (which simultaneously legalize the foreigner's stay in Poland and allow him to work without the need to obtain a work permit).

However, these are, so to speak, exceptions (albeit quite numerous) from the general rule, which stipulates that a foreigner's access to the Polish labor market requires obtaining a work permit.

The Law of March 12, 2022 on assistance to citizens of Ukraine in connection with the armed conflict on the territory of this country (the so-called Special Law) greatly facilitated the employment process for citizens of Ukraine. According to Article 22 of this Law, "A citizen of Ukraine has the right to employment in the territory of the Republic of Poland during the period of stay in accordance with the current legislation, if:

1. his stay on the territory of the Republic of Poland is considered legal in accordance with Art. 2 p. 1 [of this law], or
2. he is a citizen of Ukraine, who is legally present in the territory of the Republic of Poland - if the entity that entrusts the execution of work to a citizen of Ukraine, within 14 days from the day of execution of the work by the citizen of Ukraine, notifies the regional employment office at the location or place of residence of the entity, about the assignment of execution work to this citizen, and the work is assigned in the amount of working hours not less than specified in the notice, or with the number of hours not less than specified in the notice, and with remuneration not less than determined by the rate specified in the notice, and proportionally increased in the case of an increase in working hours or the number of working hours".

This decision means that every citizen of Ukraine (regardless of whether he arrived in Poland after February 24, 2022 and enjoys temporary protection in Poland, or stayed in Poland until February 24, 2022 and continues to legally stay in Poland on the basis of separate rules) can use the simplified employment legalization procedure. This simplification, so to speak, overturns the standard rules for legalizing the employment of a citizen of Ukraine. Under standard conditions, the employer had to first obtain a permit to employ a citizen of Ukraine (which could often take up to several months) and only then could legally employ him. According to the current legislation, we have the opposite situation: the employer first employs a citizen of Ukraine, and then has 14 days to notify the relevant body (city or county employment office) about the employment. Provided that the notification was submitted within the specified period, and the work is carried out under the conditions specified in the notification, the work of such a foreigner is considered legal.

Understanding the citizenship of Ukraine

Considering the relief available to citizens of Ukraine, it should also be clarified which persons are considered citizens of Ukraine. According to the Special Law: "Whenever this Law refers to a citizen of Ukraine, it also means the spouse of a citizen of Ukraine who is not a citizen of Ukraine, if he/she arrived on the territory of the Republic of Poland directly from the territory of Ukraine in connection with the military actions taking place on the territory of this country". Thus, the husband or wife of a citizen of Ukraine who does not have Ukrainian citizenship, if he or she came to Poland from Ukraine in connection with military operations taking place on the territory of this country, is legally in Poland, has the right to legal employment on the basis of a notification submitted by the employer.

Message

The notification mentioned above is submitted by the employer through the electronic system: praca.gov.pl. This is a fairly simple tool that only requires the employer to have a trusted profile (a type of electronic signature). The employer must complete this mandatory procedure within 14 days from the moment of employment relations with a citizen of Ukraine. The notification must be sent to the regional employment office at the location or place of residence of the entity that entrusts the performance of the work. It is necessary to fill out the form "Notification of assignment of work to a citizen of Ukraine (PSZ-PPWPU)" / -> link to the form: https://www.praca.gov.pl/eurzad/uslugi-elektroniczne/kreator-wnioskow/PSZ-PPWPU

In the notification about the assignment of work to a citizen of Ukraine to the district employment office, first select the appropriate office, and then indicate:

• information about the entity that entrusts work to a foreigner (data about the employer),
• personal data of a foreigner,
• information about the work performed.

Regarding information about the entity that entrusts the execution of work to a foreigner, the following data about the employer should be indicated: 

• name or name (names) and surname, 
• address of location or place of residence, 
• phone number or e-mail address of a business nature, 
• identification numbers NIP (corresponding to the Ukrainian TIN) and REGON (corresponding to the Ukrainian EDRPOU) (in the case of a legal entity) or PESEL (corresponding to the Ukrainian identification number PIN (in the case of an individual), 
• number of the entry in the register of subjects engaged in agency activity regarding employment (in the case of an entity that transfers the performance of work to a foreigner and engages in agency activity regarding temporary work), 
• KVD symbol and description of activities related to the work of Ukrainian citizens. 

As for the foreigner's personal data, it is indicated: 

• name(s) and surname, date of birth, gender, citizenship, type, number and series of a passport or other document that confirms or allows identification of the person and the country where this document was issued, 
• PESEL number (if assigned).

The last part contains information about the work being performed, including: 

• the type of contract between the entity that transfers the performance of the work and the citizen of Ukraine, 
• position or type of work performed, 
• place of performance of work, 
• monthly or hourly wage rate, 
• the amount of working time or the number of working hours per week or month, 
• the number of all persons who perform work on the basis of an employment contract and on the basis of civil law contracts as of February 23, 2022 and on the date of submission of the notice.

It should be remembered that if a citizen of Ukraine entered Poland in connection with military operations in the period from February 24, 2022 and his stay in Poland was recognized as legal, his employment can be legalized only on the basis of a notice of employment a citizen of Ukraine (especially in a situation where the entry of a citizen of Ukraine took place on the basis of an internal passport or ID card, in the absence of a travel document). It is impossible to employ such a person in other ways, which were described in the introduction, for example, on the basis of a declaration on the assignment of work. On the other hand, citizens of Ukraine who do not benefit from temporary protection and arrived in Poland before February 24, 2022, can work both on the basis of a notification and on the basis of a permit or mandate to perform work.

A citizen of Ukraine who was employed on the basis of a notice may freely change his employer. Today, a citizen of Ukraine has free access to the Polish labor market, provided that his stay in Poland is legal. This means that a citizen of Ukraine can change his employer, but this will be associated with the need to submit a new notice within the specified period in accordance with current legislation.

The notification, as stated above, is submitted by the employer, not the foreigner, which means that in case of a change of job (employment with a new employer), a new notification must be submitted by the new subject. The issue of the need to submit a new notice when signing a new (next) agreement with the same employer is controversial. Since this issue is not specifically defined in the Law, each body interprets such a situation at its own discretion. However, in just over a year since the introduction of the new legislation, it seems that the practice of employment offices is beginning to become clearer. According to the information available on the website of the Employment Office of the City of Warsaw-> link to the form: https://warszawa.praca.gov.pl/powiadomienie-o-podjeciu-pracy-przez-obywatela-ukrainy "not every subsequent conclusion of a contract with a foreigner requires the submission of a new notice of the commencement of work. If another contract is concluded with the foreigner with the same conditions as before, this is a continuation of work, not the commencement of work, therefore submission of a new notice is not required. In in this situation, the notice given at the beginning of the performance of the first contract is sufficient. The above-mentioned relationship works under the condition that successive contracts were concluded immediately after each other. Interruptions between successive contracts lead to the need to submit a new notice for each of these contracts.

It should be remembered that a citizen of Ukraine can be employed only under the conditions specified in the notice. If, in the process of performing work by a foreigner, the position is changed or the amount of work is reduced, in addition to changing the contract, a new notification must be submitted to the employment office within 14 days of the occurrence of such changes.

However, it is a significant relief that the law allows an increase in the amount of working hours or the number of hours of work of a foreigner with a proportional increase in his salary without the need to submit a new notice.

Another important point is that in a situation where a citizen of Ukraine receives a permit for temporary residence and work (a single permit), the employer will have to notify the employment office if the decision to issue the permit was issued with the condition of further notification referred to in Art. 22 of the so-called Special Law. The notification should be made through the praca.gov.pl portal within 14 days from the moment of delivery of the decision to the foreigner.

Obligations of the employer

There are obligations of the employer, the observance of which is of crucial importance for ensuring the legality of work not only for foreigners, but also for all employees, regardless of their citizenship. Such duties include: 

• workers' wages cannot be lower than the minimum wage or the minimum hourly rate,
• the employer must conclude a written contract with each employee specifying the terms of employment, such as the type of work, wages, working hours, vacations, etc., and in the case of a citizen of Ukraine - a written contract that takes into account the conditions contained in the notice submitted to the employment office,
• the employee must be registered for social and health insurance within 7 days from the day of starting his employment.

Regarding the determination of wages, in 2023 the minimum wage for full-time work (i.e. on the rate) from July 1, 2023 is PLN 3,600 gross (until June 30, 2023 it was PLN 3,490 gross). The minimum hourly rate from July 1, 2023 is PLN 23.50 gross (until June 30, 2023 it was PLN 22.80 gross per hour).

On the basis of the transfer of data to the Social Insurance Office (in the case of a power of attorney agreement (umowa zlecenia) upon voluntary payment of hospital contributions), a citizen of Ukraine as an employee has the right to:

• assistance in case of illness or accident at work,
• maternity benefits,
• free use of medical services (does not apply to subcontracts (umowa o dzieło) - these are civil law contracts concluded for the purpose of performing a specific job or task).

The most common mistakes

It is also worth paying attention to common mistakes that often occur when employing Ukrainian citizens and can lead to illegal employment:

1. Sending a notification to the regional employment office after the 14-day period from the moment of employment. For example, a citizen of Ukraine was employed on October 1, 2022. The notification was sent to the regional employment office on October 16, 2022. During an inspection conducted by the State Labor Inspectorate or the Border Service, employment may be recognized as illegal. In such a case, the only way to ensure the legality of employment is to terminate the current employment relationship and conclude new ones, while simultaneously complying with the obligation to notify within the prescribed period.
2. Failure to submit a notification to the regional employment office within 14 days of the foreigner receiving a decision to issue a permit for temporary stay and work, if the decision to issue a permit was issued taking into account the notification requirement referred to in Art. 22 vol. Special law.
3. Change of employment conditions (for example, reduction of working hours, transfer to another position, etc.) without sending a new notice. A change in employment conditions, and therefore, signing an addendum to the contract or concluding a new contract with a citizen of Ukraine entails submitting a new notification to the regional employment center within 14 days from the moment of its conclusion.

Final remarks

Summing up, it can be stated that the solution introduced by the so-called The special law on employment of citizens of Ukraine is extremely useful. The new provisions take into account not only the situations of persons under temporary protection, but also citizens of Ukraine who arrived in Poland before February 24, 2022. The implemented changes are aimed at creating simplified employment conditions for citizens of Ukraine. However, it should be remembered that when using this form of employment of a citizen of Ukraine, the employer is obliged to comply with the relevant notification deadline. In addition, depending on the situation, it is important to remember that changes in employment conditions that may occur during the course of employment may lead to the need to submit another notice. In the context of employment of citizens of Ukraine, it is also important to remember that legality of a foreigner's stay in the territory of the Republic of Poland and compliance with the main aspects of legality of employment is a mandatory condition for the legal work of a foreigner. Employers must enter into written contracts with foreigners and comply with all necessary legal formalities.

Adherence to due diligence and compliance with the requirements of the law is key to ensuring the transparency and legality of employment of foreign nationals, which contributes to the fair functioning of the labor market in accordance with legal regulation.