Rechtliche Herausforderungen bei der Beschäftigung ausländischer Staatsangehöriger
Fishing in domestic waters was yesterday. Many companies have moved to fish in international waters as well and have therefore expanded their recruiting radius to include nationals of other countries. Whether these remote workers come from abroad or work in Germany, their employment poses some legal challenges.
Foreign employees in Germany
If the company has made a good catch abroad, the catch should be brought to Germany. For this purpose, it must be checked under which conditions the applicant is allowed to enter Germany and work for the company there. In principle, foreign nationals require a visa and/or a residence permit with a specific work permit. The only exceptions are EU nationals, because they are allowed to work in any EU member state even without a work permit.
Particularly due to the acute shortage of skilled workers, both companies and applicants usually have a great interest in starting their cooperation as soon as possible. If only it weren't for the bureaucracy, which holds a few stumbling blocks on the way to start the employment. After all, despite all the globalization, the employment of foreign specialists is still tied to strict criteria. The question of whether and how quickly a work permit or residence title is issued depends largely on the position to be filled and the qualifications of the applicant.
Once in Germany, the applicant must notify the relevant authorities of any change of position and must also ensure that the residence title is extended in good time. Companies are therefore well advised to check before any changes to the employment contract whether these must be notified to the authorities and to note a reminder with regard to an extension of the residence title.
Mobile Work of (German) Employees Abroad
However, since domestic employees are also drawn out into the wide world, many companies are moving toward allowing mobile work abroad not only for new applicants, but also for employees who are already on the payroll. However, it is not just the position that needs to be suitable for this. Due to the different countries (and thus jurisdictions) from which an employee can work on a remote basis, companies have to fight their way through a legal jungle of occupational health and safety, social security and taxes of the respective jurisdiction, and especially outside the EU/EEA it also has to be checked whether the activity poses tax implications for the German company. Another aspect that companies should not lose sight of in connection with an activity abroad is the guarantee of data security.
In order to avoid the scrutiny of all these framework conditions, some companies are also moving towards employing applicants working abroad only as self-employed freelancers and no longer as employees. In this case, one should inform oneself about the foreign requirements for the distinction between self-employment and dependent employment as an employee in order to prevent possible financial and criminal risks of a bogus self-employment for the company.
Fishing in international waters needs to be learned in order to avoid any unwanted surprises. Listen to more about "International Recruiting" in our podcast (in German). If you have any questions, our experts will be happy to support you in all matters relating to the recruitment of foreign applicants.