Recruitment of foreign workers in Spain
If you want to hire a foreign worker, you must check that this person has authorisation to work in Spain. See in which cases you may find yourself and find out the consequences of hiring a person “without papers”.
EU workers from the European Union
From Member States of the European Union or the European Economic Area.
They are like Spaniards.
If a company wants to hire a foreign worker who is a national of a European Union (EU) Member State or of the other European Economic Area (EEA) States, it can do so without any problems as if he or she were a Spanish citizen. Such persons have the right to take up any activity in Spain, whether employed or self-employed [RD 240/2007, art. 1 and 3]. Therefore, in order to hire them:
- Companies must ask them for the document accrediting their nationality (for example, the certificate of their registration as an EU citizen, or their passport).
- The EU worker must have obtained an affiliation number (NAF) from the Social Security. This number is essential for the company to be able to register him/her with the social security authorities.
Failure to register a foreign worker with the social security system
If a company hires an EU worker but does not register him/her with the social security authorities, it is guilty of an offence [LISOS, art. 22.2] and will be fined a minimum of 3,750 euros [LISOS, art. 40.1.e)].
The EU countries are Belgium, Croatia, Denmark, Germany, Spain, France, Ireland, Latvia, Luxembourg, the Netherlands, Sweden, Bulgaria, Slovakia, Estonia, Greece, Malta, Poland, the Czech Republic, Austria, Cyprus, Slovenia, Finland, Hungary, Italy, Lithuania, Portugal and Romania.
Other EEA countries are Iceland, Liechtenstein and Norway.
Family members of EEA foreign workers
Same treatment
If the spouse or family members of a Spanish citizen or of the above-mentioned EU nationals are to be employed, the legal treatment is the same. These persons may also work in Spain, whatever their nationality [RD 240/2007, art. 2 and 3].
Example
A person from Venezuela is married to a person from France and both reside in Spain. Well, the company will be able to hire the Venezuelan national because he/she is the spouse of an EU national. The same applies if, instead of being the spouse, it is his or her unmarried partner, his or her ascendants or descendants.
Non-EU workers
Residence and work permit or authorisation
Compulsory.
If the person to be hired is not in any of the cases indicated so far and is a national of a non-EU country (Morocco, China, Russia, Argentina…), he/she must have a residence and work permit to be able to provide services in Spain [LO 4/2000, art. 36] .
Example.
A company is going to hire a national from Andorra. Well, in this case, it will have to check that the person in question has a residence and work permit. The same will happen, for example, if the person is from the United Kingdom.
Non-compliance.
In the event that the company hires a non-EU national who does not have a residence and work permit, it will receive a fine from the Inspectorate. See which cases may occur:
If the person does not have a residence and work permit, the company will be committing a very serious offence [LO 4/2000, art. 54.1.d)] and will receive a fine of at least 10,001 euros [LO 4/2000, art. 55.1.c)].
The worker may have a residence and work permit limited to a certain territory and activity, for example, which entitles him/her to work in construction in the Community of Madrid. If the company employs him/her in another sector or activity, he/she will be committing a minor offence [LO 4/2000, art. 52.e)] and will receive a fine of up to 500 euros [LO 4/2000, art. 55.1] .
Increase of the fine.
In addition, when a company is sanctioned for employing a foreign worker without the required work authorisation, the amount of the fine indicated in the previous paragraphs will be increased by the amount resulting from calculating what would have been paid in Social Security contributions from the beginning of the foreign worker’s employment [Law 62/2003, art. 48].
Example.
If the Inspectorate catches a Chilean national working in a company without being authorised to do so, it is accredited that he has been working for one year, and the company has been paying him a salary of 1,500 euros per month, the total fine will be 15,743 euros:
| Concept | Amount |
| Inicial fine | 10.000 euros |
| Increase | 5.742 euros (1.500 x 12 month x 31,90%) |
| Fine | 15.743 euros |
Provided that the Inspectorate does not consider that there are aggravating circumstances and that it applies the minimum amount of the sanction. Very serious infringements are punishable by a fine of between 10,001 and 100,000 euros.
Applying a contribution rate of 1.5% for accidents at work.
The Law on Infractions and Sanctions in the Social Order (LISOS) includes a specific chapter on infractions regarding migratory movements and the work of foreigners. However, the Labour Inspectorate applies the sanctioning regime of the Organic Law on Foreigners 4/2000.
Rights of foreigners.
Although the lack of a residence and work permit cancels the contract (the foreigner cannot work because he/she does not have the necessary capacity), he/she will maintain the rights that would have corresponded to him/her as any other worker (for example, to receive the agreed salary). However, he/she will not be able to obtain unemployment benefits [LO 4/2000, art. 36.5].
Other common cases
Refugees and asylum seekers
Red card.
It is usual for a foreign worker from outside the EU to hand over a document, known as a “red card”, with a specific mention that entitles him/her to work. For this purpose:
- When a foreigner submits an application for international protection (asylum, refugees…), he/she is automatically granted an authorisation to stay in Spain. In other words, the mere fact of completing the procedure authorises the foreigner to reside validly in our country, but not to work.
- If six months have passed since the application was submitted and the application has not been resolved, the applicants will already be authorised to work in Spain [RD 557/2011, D.A. 21ª] . In such cases, they obtain this “red card” which enables them to work.
If it is denied…
On the other hand, it is common for an asylum application to be denied. For example, if it is not accredited that the foreigner is considered a refugee or comes from a country at war. However, such a refusal is decided later than the six months mentioned in the previous point (usually up to two years). In this case:
- The periods worked from the six months until the final decision are valid.
- After the decision, the foreigner is no longer allowed to work. If the company maintains its registration, it will be employing a person without a residence and work permit and will be fined a minimum of 10,001 euros.
Students
They can work for a few hours.
It is also common for non-EU citizens to travel to Spain and obtain a visa for studies, training, non-labour practices or volunteer services. These people are authorised to work in our country if two requirements are met [RD 557/2011, art. 42]:
- The studies undertaken must be higher education, or it must be regulated training for employment or for the purpose of obtaining a certificate of professionalism, or training for the purpose of obtaining a certificate of technical aptitude or professional qualification necessary for the exercise of a specific occupation.
- The employment contract may not exceed 30 hours per week.
Example
It is not valid for an English person to come to Spain in the summer to study Spanish and start working, but it is valid for a Mexican to come to study for a Master’s degree and with this visa to work part-time.
If a company hires a non-EU national who does not have a residence and work permit in Spain, it will receive a minimum fine of 10,001 euros (which will be increased according to the contributions that should have been made by the person).
