Do you ever use a temporary worker? And do you check to see if the staffing agency you are dealing with does everything nicely according to the rules? In most cases, you will do business with a staffing agency that works honestly. But in some cases it is not, and this can have major financial consequences for you. This is because you can be held liable by temporary workers if they are underpaid. Or you can be fined if it turns out that the foreign temporary worker employed by you or your subcontractor does not have a work permit.
Hiding behind the argument that you are not the formal employer of the temporary worker is not one of them. You share responsibility for ensuring that the temporary agency operates in accordance with the correct laws and regulations. In recent years, partly due to the entry into force of the Act on Tackling Malpractice (Wet Aanpak Schijnconstructies, WAS) in 2015, there has been a lot of attention for so-called "malafide temporary employment agencies. The Social Affairs and Employment Inspectorate (SZW) has stepped up enforcement. Just recently, during an inspection of 500 employment agencies, the Inspectorate handed out as many as 131 fines to employment agencies and hirers, totaling €1.3 million.
So it is vital to check that you are dealing with pure coffee. The top six industries where abuses are found are agriculture and horticulture, metal and industry, hospitality, retail, construction and cleaning. What exactly should you pay attention to when hiring a temporary employment agency? And what are your own responsibilities?
Together with the Tax and Customs Administration and parties in the sector, the Inspectorate SZW has prepared a handy checklist for companies working with temporary employment agencies:
- Check the Trade Register of the Chamber of Commerce. As a hirer, you are required by law to do this. The registration must show that the temporary employment agency provides workers. Make a 'print-screen' of the registration page and save it for a possible inspection by the Inspectorate SZW. In addition, check whether the provided Chamber of Commerce number of the temporary employment agency is correct.
- Check whether the employment agency is affiliated with the ABU or NBBU. These are the branch organizations of the temporary employment sector. They set certain quality requirements for their members and membership in these therefore speaks for the temporary employment agency.
- Check whether the temporary agency pays temporary workers adequately. In principle, temporary workers are entitled to the same pay as workers employed by you. In case of underpayment, the temporary workers can sue you directly. Inform the temporary agency (in writing) about gross wages, allowances for irregular hours and overtime, wage increases, expense allowances and other periodicities. Then ask the temporary agency for a written guarantee that they will pay the hirer's remuneration.
- Check that the staffing agency is billing correctly. Unclear and incorrect invoices are indicators that you are dealing with an unreliable temporary employment agency. The invoice should at least include the legal name and address of both parties, VAT number, Chamber of Commerce number, date, serial number, service/product provided, amount excluding VAT, VAT rate and the final VAT amount.
- Check whether the employment agency is certified by the Stichting Normering Arbeid. The SNA hallmark is the quality mark for all temporary employment agencies and (sub)contractors and indicates that they meet a certain standard. If you do business with an SNA-certified temporary employment agency, you will not be held liable (or only to a limited extent) if the temporary employment agency does not pay sufficient payroll taxes or VAT.
- Check if the staffing agency has a G account. A G account is a blocked bank account that can be used exclusively to make payments to the Internal Revenue Service. The purpose of a G account is to prevent a temporary employment agency from evading the payment of payroll taxes and social security contributions. You can easily recognize a G account; the account number starts with 99. You pay 25% of the invoice amount (including VAT) into the G account. This prevents liability for overdue payments by the employment agency.
- For employees from the Netherlands, EEA (excl. Croatia) or Switzerland, you may not make a copy of the ID card for privacy reasons, but you may copy the following information: Name and address details, date of birth, BSN, nationality, type of ID proof, the number and validity, any A1 certificate, residence permit or work permit, name and address details of the employment agency and the specification of hours worked. Ask the temporary worker to sign and verify.
- For workers from outside the EEA or Switzerland, or workers from Croatia, you should ask the employment agency for a copy of the passport or ID card. Check it and keep it for five years after the end of the year in which the temporary worker is employed to avoid a fine. If the copy is not legible or the photo is not clear, demand a better copy.
- Check whether the temporary worker is legally allowed to work in the Netherlands. Otherwise, you risk a fine. The following temporary workers are allowed to work legally in the Netherlands:
- Temporary worker from an EEA country or Switzerland.
- Temporary worker with Croatian nationality, provided with sticker in passport ('Labor permitted') or already worked for 12 months continuously (legally) in the Netherlands.
- Temporary worker with nationality outside the EEA or Switzerland, provided with sticker in passport ('Labor permitted').
- Temporary worker with residence permit with additional document ('Work permitted'), so-called 'combined residence and work permit'.
In all other cases, the temporary employment agency must have a work permit from the UWV. Ask the temporary employment agency for a copy of the permit and keep it in your records, along with the temporary worker's ID, until five years after the end of the year in which the temporary worker is employed to avoid a fine.
- Check that you provide the temporary worker with a safe and healthy workplace. If the temporary worker suffers an accident in the workplace, you as the hirer are responsible. Also make sure you comply with the Working Hours Act, by keeping records of hours. The temporary agency is not responsible for this.
Using the checklist, you will soon enough find out whether you are working with a reliable employment agency or not.
The attorneys of service area Labor regularly advises on the use of (international) temporary workers. If you have any questions on this topic or on the checklist, we are of course happy to think along with you.
