SIMPLIFIED RULES FOR POSTING FOREIGN WORKERS IN ROMANIA

The Romanian economic landscape is undergoing rapid transformation under the continued influence of labor migration. In this context, the employment and posting of foreign workers in Romania became topics of great interest for Romanian employers, who must navigate through a very dynamic internal legislation. Thus, the latest legislative amendment was brought by Government Ordinance No. 6 of January 25, 2024, amending Government Ordinance No. 25/2014 on employment and posting of foreigners in Romania, and for the modification and completion of some normative acts regarding the regime of foreigners in Romania.

The new normative act introduces the possibility for the work permit or, as the case may be, the work permit for posted workers (posting permit) to also be transmitted to the applicant electronically. The ordinance also amends the sanction regime in favor of employers.

The Government establishes annually, by decision and considering the proposal of the Ministry of Labor, the quota of foreign workers newly admitted to the labor market. For 2024, the set quota of foreign workers is 100,000.

It should also be noted that by "foreign workers," according to the law, we mean citizens from third countries, other than those of the EU and the EEA, who may be employed or posted in Romania based on a work / posting permit obtained by the employer.

There follows an overview of some key elements on the steps to be taken for employment or posting of foreign workers on the territory of Romania.

The work permit

Obtaining a work permit for foreign workers is the first and most important step in legally hiring a foreign worker.

The process of obtaining the respective document from the General Inspectorate for Immigration falls upon the employer, who shall submit to the General Inspectorate for Immigration a file containing supporting documents demonstrating that the foreigners to be hired fulfill a series of conditions:

- General conditions : for example they are not subject to entry bans on the Romanian territory or the Schengen area

And

- Specific conditions : among which: (i) conditions regarding studies, if the position to be held requires that certain conditions regarding studies or professional training are met, (ii) the absence of a criminal record, (iii) that the employer sought to have the respective vacant position filled by a Romanian citizen, by a citizen of another member state of the European Union or the European Economic Area, by a citizen of the Swiss Confederation or by a foreigner with right of long-term residence on the territory of Romania, (iv) the employer has no outstanding tax obligations.

In order to prove that these conditions are duly fulfilled, the employer will have to submit supporting documents, such as :

• the employment offer;
• the job description of the future employee;
• curriculum vitae;
• the criminal record of the foreigner or another document of the same legal value;
• the organizational chart of the company;
• the certificate regarding the work force available for the vacant job issued no more than 60 days prior to the submission of the application for the employment clearance by the employment agency with jurisdiction over the employer’s corporate or professional headquarters;
• corporate documents attesting that the legal obligations are fulfilled; viii. documents proving the hires to be are duly qualified (e.g. the authorization document provided for by law, when applicable).

The work permit, as defined by legislation, is the official document certifying the right of an employer to hire a foreigner in a specific position.

Foreign citizens can be employed in Romania as permanent workers, trainee workers, seasonal workers, au pair workers, or cross-border workers.

As an exception to the aforementioned general rule, obtaining the work permit is not mandatory in the cases mentioned under Government Ordinance no. 25/2014, among which we mention:

• For foreigners whose free access to the labor market in Romania is established under treaties concluded by Romania with other states;
• For foreigners who are appointed to the management of a subsidiary, representative office or branch on the territory of Romania of a company headquartered abroad, in accordance with the underlying supporting documents provided by the Romanian legislation;
• For foreigners with the right of long-term residence on the territory of Romania;
• For foreigners with the right of temporary residence for family reunification or for studies (they can only be hired with a part-time individual employment contract with maximum 4 hours per day);
• For asylum seekers from the date on which they have the right to receive access to the labor market according to Law no. 122/2006 regarding asylum in Romania;
• For foreigners holding the right of temporary residence for work purposes, employed in Romania with a full-time individual employment contract, for employment at another employer, with a part-time individual employment contract;
• For citizens of the Republic of Moldova, Ukraine and the Republic of Serbia employed in Romania with a full-time individual employment contract, for a maximum period of 9 months in a calendar year.

The foreigner employed based on the work permit, except for seasonal workers, can take up a new job at any time during the validity period of the unique permit or the EU Blue Card, whether with the same employer or with another employer. Additionally, for the issuance of a new work permit, the foreigner's criminal record issued by the Romanian authorities must also be submitted.

The posting permit

Foreigners can also work as posted workers or ICT workers, based on the posting permit obtained by the beneficiaries of the provision of services (Romanian companies). As in the case of the work permit, the law provides for a series of exceptions where obtaining a posting permit is not necessary.

Foreigners who are allowed to work on the territory of Romania as posted workers, without obtaining the posting permit include, among others:

• foreign employees of legal entities based in the EU Member States or the EEA or in the Swiss Confederation, posted in Romania, conditional upon producing the residence permit from that State;
• foreigners who are granted free access to the labor market in Romania under treaties concluded by Romania with other States.

Foreigners who hold an ICT permit issued by another EU Member State can work on the territory of Romania as ICT workers starting from the date of the application for issuance of the posting permit by the beneficiary of the provision of services in Romania.

The procedure for obtaining the posting permit from the IGI is quite similar to that for obtaining the work permit.

The application for the issuance of the work/posting permit is submitted by the employer / beneficiary of the provision of services to any of the territorial units of the IGI.

***

The deadline for processing the request for the work / posting permit by the IGI is 30 days from the date of registration. If additional checks are necessary, the deadline may be extended by a maximum of 15 days. The request for issuing a work permit filed by employers of an EU Blue Card holder obtained in another member state is processed within 15 days from receipt.

When submitting the application for the issuance of the work / posting permit, fees are paid in lei, equivalent to 100 euros based on the official exchange rate of the National Bank of Romania valid on the date of payment. A reduced fee is provided for seasonal workers. In case of refusal to issue the work / posting permit, the employer/beneficiary of the service recovers the fees paid, in accordance with the law.

The work / posting permit may be cancelled by the IGI in several situations, including:

• it is subsequently found that the conditions stated in the Ordinance were not met at the date of issuance of the work / posting permit;
• it is subsequently found that the work / posting permit was obtained based on false or falsified documents;
• the employer / beneficiary of the service fails to claim the work / posting permit within 30 days from the due date for settlement of the application, or expressly requests the cancellation of the work / posting permit prior to the foreigner obtaining the long-term visa for work or deployment;
• it is found that until obtaining the long-term visa for work or deployment, the conditions for issuing the permits are no longer met.

It should be noted that solely based on the work/posting permit, the foreign citizen cannot enter the territory of Romania; they must also obtain an entry visa, which will attest to the right of temporary residence for work purposes for a maximum of 3 months. After entering the territory of Romania, the foreign citizen will need to obtain an extension of the right of residence for work purposes from the IGI.

Rights and responsabilities

Foreigners residing legally in Romania enjoy the general protection of persons and assets, guaranteed by the Constitution and other laws, as well as the rights provided for in international treaties to which Romania is a party.

Foreign workers thus benefit from guaranteed minimum wages and working conditions similar to those of Romanian citizens, including rights to health and social insurance. In the case of posting, both the employers who deploy them and those who receive them have a joint responsibility to ensure full compliance with the rights of posted workers.