Do I Have a Posted Worker? (Part II)

March 1, 2019

By Kent O’Neil

Over the last several years, “Posted Worker Rules” have become a hot topic of discussion in the European mobility industry and an oft-confusing headache for company HR and mobility managers with employees in Europe. Much of what is written on the subject focuses on the compliance requirements of equal pay and employment conditions, “posted worker notifications”, documents to be retained, and appointing company liaisons and representatives, and the intricacies of social security coverage. For a quick summary of posted worker requirements, see EU posted Worker Requirements… in 5 Minutes.

In this two-part blog, we are just focusing on answering the fundamental question – Do I have a posted worker? Last week, we took a deep-dive into the strict definition of “posted worker”. (If you missed Part I, you can catch up here.) This week, we apply that definition to a few real world examples – both typical and atypical examples. While it is impossible in this short blog to definitively enumerate all of the potential examples where posted worker requirements may apply, the following examples are offered to give readers a “heads-up” for instances to watch for where posted worker requirements may apply.

Example 1

A Polish national pipefitter employed at a construction firm in Poland is sent by his employer to work on a water treatment plant construction for a client in France. His part of the project is expected to take three months.

Posted worker requirements apply. This is a typical case where posted worker requirements apply. The worker is an EU national employed in an EU member state who is sent by his employer to work on a client project in another EU member state.

Example 2

An Indian national software engineer employed at a technology firm in France is sent by her employer to work temporarily at a branch of the same company in Belgium. The assignment is expected to last 11 months, and she remains on the payroll of the French branch.

Posted worker requirements apply. While the scenario changes somewhat from Example 1, the changed facts do not change the result. The fact that the worker in this example is a non-EU national does not exempt them from posted worker requirements in any EU member state. Likewise, the fact that the worker is working temporarily at a branch of the same company rather than a client site, does not change the result that posted worker requirements apply.

Example 3

A U.S. national biotechnologist employed at a pharmaceutical company in the U.S. is sent by his employer to work on a research project being conducted at an affiliated company in Denmark. He remains on the payroll of the U.S. company, and the research is expected to take six months.

Posted worker requirements apply. This is a case a bit less typical and one where it may not be obvious that posted worker requirements apply. The strict definition of “posted worker” found in the EU directives anticipates workers who normally work in one EU/EEA member state or Switzerland who are temporarily working in another EU/EEA member state or Switzerland. However, some countries (like Denmark) have adopted definitions of “posted worker” that include all workers from any country (like the U.S.) that are temporarily working in the country.

Example 4

The same U.S. national biotechnologist as in Example 3 above, working on the same research project for six months, accepts employment with the German affiliate and is removed from the payroll of the U.S. company and added on contract of the affiliate.

Posted worker requirements do not apply. This variation of the previous example is provided to emphasise that one of the key factors in determining whether a worker is a “posted worker” is the country where the worker is employed, i.e. the country through which the worker is paid. The facts in Example 3 led to the result that posted worker requirements apply. However, by simply changing the location of the worker’s payroll from the U.S. to Germany, the posted worker requirements no longer apply.

Example 5

A German national civil engineer employed at an engineering firm in Germany is sent to inspect an ongoing bridge construction project in Ireland. She is flying in Sunday evening, inspecting the site and meeting with contractors on Monday, and returning to Germany late Monday night.

Posted worker requirements apply. This example and the two examples that follow are provided to demonstrate the impact of the length of the assignment on whether posted worker requirements apply. In some countries (like Ireland), posted worker requirements (such as notification of authorities prior to the posting) can apply for assignments of a duration of as little as one day.

Example 6

A French national insurance executive is going on extended business travel to Spain where he will be joining other insurance representatives of the same company on visits to clients of the company. The entire trip will last seven days. The company has no physical office in Spain; all of the representatives whom he will be joining on client visits work remotely.

Posted worker requirements do not apply. In this example, the key fact is that the assignment is for seven days. Under the Spanish posted worker rules, assignments for less than eight days do not invoke the posted worker rules. Therefore, this assignment is exempt from the posted worker notification requirement. The other facts that the assignment here is characterised as “extended business travel”, the company has no physical office in Spain, and the executive is joining in-country co-workers on client visits are “red herrings” and are discussed in the example below.

Example 7

The same French insurance executive in Example 6 above is now going on the same trip to meet with the same company representatives and accompany them on client visits. However, this trip will last three weeks.

Posted worker requirements apply. Here we have essentially the same scenario as Example 6 above, with the only difference being the length of the trip. As the trip here is over eight days, the posted worker requirements now do apply.

The fact that the assignment is described as “extended business travel” has no impact on whether the posted worker requirements apply. The determining factor here is whether the activity actually being performed by the executive is considered “work” in Spain. As he is going on client service visits to the firm’s clients, the activity is likely to be considered work, rather than simply a business trip.

Determining whether an employee’s activity is “work” or “business” is perhaps the most challenging aspect of complying with the posted worker requirements. Companies need to be acutely aware that many activities that the company may consider “business trips” may be considered “work” by authorities, thus invoking posted worker requirements.

The fact that the company does not have a physical office in the country that the executive is going to has no impact. Similarly, the fact that he is accompanying an in-country co-worker is not determinative.

Example 8

A weeklong international fintech conference is being held by an industry association at a resort in Croatia. A tech company in Spain is sending two Spanish national employees from its’ Barcelona office to the conference.

Ana is a software engineer who will be attending conference sessions as a participant and speaking at two sessions. She is not being paid any form of speaking fee from the industry association.

Adrian is a technician who will be attending conference sessions as a participant. In addition, Adrian will be installing, maintaining, repairing, and uninstalling computer equipment that is being used in the conference. Neither he nor his company is being paid by the industry association; his company is contributing his services to support the conference and benefit the industry association.

Posted worker requirements do not apply to Ana, but likely do apply to Adrian. The example here presents two employees of the same company, employed in the same country, attending the same conference. Neither are being directly compensated for their activity at the conference. The only difference is the nature of the activity in which they will be engaged.

Ana is attending sessions and speaking. This activity is generally not considered “work” where she is not being compensated for her speaking.

Adrian is attending sessions, but he is also installing equipment at the start of the conference and uninstalling equipment after the conference and remaining on-call for maintenance and repair while he attends sessions. While he is not being compensated by the industry association for his services, the nature of his activity is likely to be considered “work”. Thus, the posted worker notification requirements are likely to apply.

Final Thoughts and More Resources

There are obviously many other examples that we could examine. However, I hope that these few examples provide some insight into the definition of posted workers and where posted worker requirements – such as notification to authorities, document retention, and appointment of a liaison and representative – may apply. Again, it was not our intent to provide a definitive guide to every situation where posted worker requirement might apply. Rather, this blog is offered to help HR and mobility professionals identify work assignments and business travel which may give rise to posted worker obligations – and potential liability for fines and other consequences where overlooked.

There is significant variation in laws, processes, and enforcement across the various EU member states regarding posted worker requirements. Therefore, determining whether posted worker requirements apply in your case depends heavily on the jurisdiction involved. Likewise, with an almost infinite number of variations in real world work assignments and business travel – how those laws and processes are applied are heavily driven by the particular facts of the matter.

In the oft-confusing and frequently changing area of posted worker rules – there is no substitute for knowledgeable and experienced professional guidance. For assistance with a potential posted worker assignment, you are encouraged to reach out to Newland Chase’s Strategic Services Team dedicated to posted worker compliance at [email protected]. They can provide you with country specific factsheets on posted worker requirements, individual assessments based on the facts of the matter, and direct assistance complying with the applicable requirements.

Related Content:

Do I Have a Posted Worker? (Part I)

EU Posted Worker Requirements… in 5 Minutes

Author’s Note: Many thanks to Newland Chase’s Carlijn Langeveld, Manager Advisory Services, and Mehibe Hill, Strategic Services Manager, for their invaluable input in the writing and editing of this blog. Their professional expertise and dedication allow our clients to successfully navigate the challenging “real world” of posted worker requirements throughout Europe.

This blog is informational only and is not intended as a substitute for legal advice based on the specific circumstances of a matter. Readers are reminded that immigration laws are fluid and can change at a moment’s notice without warning or notice. Please reach out to your Newland Chase contact should you require any additional clarification or guidance. Written permission from the copyright owner and any other rights holders must be obtained for any reuse of any content published or provided by Newland Chase that extend beyond fair use or other statutory exemptions. Responsibility for the determination of the copyright status and securing any permissions rests with those persons wishing to reuse this blog or any of its content.