Is it possible for a Slovak agency to employ a foreign national?

According to the current legislation (as of 10/2024):

“An employer or a temporary employment agency may not temporarily assign a third-country national pursuant to Paragraph 1, Letters a) to h) to perform work for a user employer.22e) A temporary employment agency that has been operating for at least three years prior to submitting an application pursuant to Section 21b, Paragraph 1, Letter a) may temporarily assign a third-country national pursuant to Paragraph 1, Letter b) to perform work for a user employer in an occupation with a labor shortage in a region pursuant to Section 12, Letter ad). The temporary employment agency shall not temporarily assign a third-country national under the second sentence to another user employer within the scope of the granted temporary residence for the purpose of employment.

An employer shall not employ third-country nationals pursuant to Section 21b, Paragraph 7, Letter f) in excess of 45% of the total number of its employees. For the purposes of the first sentence and Section 21b, Paragraph 7, Letter f), the number of third-country nationals

a) shall not include, in the case of a temporary employment agency, third-country nationals whom the temporary employment agency has temporarily assigned to perform work for a user employer,

b) shall include third-country nationals who are temporarily assigned to perform work for a user employer.”

Outdated answer under the legislation effective until December 31, 2018:

The conditions for employing foreign nationals with a place of work within the territory of the Slovak Republic are regulated by Act No. 5/2004 Coll. on Employment Services and on Amendments and Supplements to Certain Acts, as amended (hereinafter referred to as the “Employment Services Act”).

Pursuant to the legal regulations effective until December 31, 2018, neither an employer nor a temporary employment agency may temporarily assign a third-country national under Section 21, Paragraph 1, Letters a) to e) of the Employment Services Act to perform work for a user employer. This is linked to the fact that third-country nationals may, in principle, work within the territory of the Slovak Republic on the basis of a confirmation on the possibility of filling a vacancy or a work permit, both of which are tied to a specific vacancy. Without meeting these conditions, an employer may only employ a third-country national in cases covered by one of the exemptions enshrined in Section 23a of the Employment Services Act. A frequently utilized exemption is the employment of third-country nationals holding the status of a Slovak Living Abroad. Other utilized exemptions include, for example:

• the employment of third-country nationals seconded by an employer established in another EU Member State within the framework of the provision of its services;

• the employment of a third-country national who, on the basis of a commercial contract, ensures the supply of goods or services and delivers these goods or, in connection with the delivery of goods, performs assembly, warranty and repair work, work related to setting up production equipment systems, or, in connection with the supply of goods or services, performs programming work or professional training, provided that the duration of their employment relationship or secondment for the performance of work does not exceed a total of 90 days in a calendar year.

Although the legal order provides for exemptions, the possibilities of employment on their basis are limited in duration and require compliance with all statutory conditions.

Similarly, we have noted cases where an employer leases a portion of premises from another company and acts as if it is manufacturing goods for itself, but its employees perform the exact same work as the core staff of the company from which it leased the premises, ultimately constituting dependent work performed for the lessor. Some employers also employ foreign nationals who are legally present within the territory of the Slovak Republic under a visa-free regime (90 days within a 180-day period) but lack authorization to work in the Slovak Republic. Cases are also common where a foreign national is granted temporary residence for the purpose of business on the basis of a trade license, but their actual activity exhibits the characteristics of dependent work.

It is not excluded that a company which, inter alia, holds a valid permit to operate as a temporary employment agency, could employ a third-country national provided that all statutory conditions are met (naturally including the acquisition of the necessary permits). However, the condition is that this foreign national will perform work for the company in question and not for another so-called user employer.

We see a further issue in the employment of third-country nationals by an agency regarding the acquisition of residence for the purpose of employment for a period exceeding 90 days (unless specific cases of seasonal employment or intra-corporate transfers are involved). The conditions for acquiring temporary residence within the territory of the Slovak Republic are regulated by Act No. 404/2011 Coll. on the Residence of Aliens and on Amendments and Supplements to Certain Acts, as amended. For the purpose of acquiring temporary residence for the purpose of employment, the Residence of Aliens Act requires:

• a written promise from the employer to hire the third-country national or an employment contract, and a decision on the recognition of the third-country national’s proof of education under a special regulation, or a document certifying the highest level of education attained, in the case of a third-country national applying for temporary residence under Section 23, Paragraph 1;

• a work permit or a confirmation from the employer that the third-country national is to perform an activity for which a work permit is not required;

• a written promise from the employer to hire the third-country national, which contains the essential elements of an employment contract.

In the event that a third-country national were to be employed by a Slovak agency for the purpose of their subsequent assignment, we believe that residence within the territory of the Slovak Republic would not be granted to them. The same applies if they were to be assigned to a user employer in another EU country.

At present, however, legislation has already been approved which will adjust the conditions for employing third-country nationals in certain cases as of January 1, 2019.