1. Can my employer terminate the employment contract with me prematurely?

In principle, no. According to Dutch employment laws, different redundancy procedures are required for different reasons of premature termination. According to article 7:669 of the Dutch Civil Code, a company must first obtain the redundancy permit from the Dutch Labour Department (also known as ‘UWV’ in Dutch), if the worsening business climate is the reason for redundancy. There are strict conditions that a company needs to meet before the UWV grants such a permit. For instance, the dismissal needs to be conducted in a ‘reversed order’, meaning that, among the employees of the same position, the person with the shortest tenure gets laid off first. Dismissal without such a permit is illegal. If you are confronted with such a situation, you need to challenge the illegal dismissal in court within 2 months.

If an employer dismisses an employee due to other reasons (such as, ‘underperformance’, ‘deteriorating relationship’ or ‘fault committed by the employee’), the company needs to start a legal procedure with the District Court (‘kantonrechter’), asking for the judge’s authorisation for the dismissal.Another way of dismissing an employee is through obtaining mutual consent from both the employer and the employee. Once the two parties reach an agreement, they can sign a special contract called ‘settlement agreement’ (‘vaststellingsovereenkomst’) in Dutch. Considering the complexity of redundancy laws, most companies opt for this last method.

2. I have a temporary employment contract. When does the Company need to inform me about the possible renewal or non-renewal?

If the length of your employment agreement is six months or longer, the Company needs to inform you at latest 1 month in advance about the issue as to whether your current employment agreement shall be extended or not. If the company decide to extend it, they also need to inform you about the conditions of the extension (such as, salary etc). Please be aware that the Company need to inform you in writing. An oral notification is not sufficient. If the company does not comply with this rule, you are entitled to a financial compensation. The maximum amount of the financial compensation is 1-month salary. If the company informs 1 week late, you are entitled to one-week salary. The company where I am working decides not to renew my contract. I have been working 9 months there.

3. Am I entitled to dismissal compensation?

Yes, on the basis of Dutch employment laws, you are entitled to a transition compensation. The amount of the transition compensation is related to the length of your tenure at the company. For each half year that you have worked, you are entitled to 1/6 of your monthly salary as a transition compensation. If you have worked 9 months at a company, you are entitled to at least a transition compensation of at least ¼ of your monthly salary.

4. If the employer terminates my employment agreement, does that have an impact on my residence title?

If you are on a highly skilled migrant permit, an EU blue card or regular employment permit, the termination of your employment agreement can have a negative impact on your residence permit status. If your residence card is still valid for a period of three months or longer, you will have three-month time to look for a new job. If you cannot find a job during the search period, the IND can revoke your residence permit, starting from the end of the three month search period. If your residence card is valid for a period shorter than 3 months, you will only get the time until the expiry date to find a new job. If your residence permit and your employment agreement end on the same day, you do not get any extra time to look for a new job.

6. Can my employer lower my salary unilaterally due to the worsening economy?

No. Your employer is obliged to pay your salary as your employment contract states. In fact, the Dutch Government have launched a number of relief measures, with the purpose of supporting companies throughout this corona crisis. One of these measures is the so-called NOW policy.  This NOW policy compensates up to 90% of the salary expenditure. However, this does not mean that you are only entitled to 90% of your agreed salary. On the basis of Dutch labour laws, employees have the right to get their contractually agreed salary (as stated in contract itself), even if their workload is less than usual. This adheres to the principle of ‘good employer’ and ‘good employee’, pursuant to the employment laws in the Netherlands. A ‘good employer’ has the obligations to accept the reasonable demands from the employees. For example, as the schools are closed due to the lockdown, an employee has to work at home, while taking care of his/her children (except in certain cases where the presence of the employees at the workplace is absolutely necessary). On the other hand, as a ‘good employee’, he/she shall accept certain reasonable modifications of his/her job contents on a temporary basis, as long as they are reasonable and inevitable under the current circumstances.  For example, the employer postpones the payment of the annual bonus from July until December. In order to assure a non-stop 24/7 operation of a production line, the employer may ask the employees to change from morning shift to evening shift. Some employment contracts include ‘unilateral modification’ clause. Should the employer want to use the modification clause, he/she needs to bear in mind the principle of  ‘reasonableness and fairness’.

7. Are there any legal consequences if my employer cuts my salary or withholds it?

Employers have no right to cut or withhold the salary without your consent. According to Dutch labour law, if the employer withholds the salary payment, the employee may ask the court to impose an additional penalty (up to 50% of the amount owed). If your employer is withholding your salary, you can start an interim measure procedure with the District Court. Under such situations, the court will handle your case on an expediated basis.

Nevertheless, for highly skilled migrants, if your company withholds the payment of your salary, there can be serious consequences. On the basis of the Dutch Foreigner Employment Act, the recognized sponsor must pay out a highly skilled migrant’s salary each month in time, through bank transfer, to the highly migrant’s own bank account. If a company does not pay the salary in time or if the salary drops below the required thresholds, that is a breach of article 2 of the Foreigner Employment Act. This means ‘illegal employment’. Should the IND find out that your salary was not paid in time or that your salary drops below the threshold, the IND can revoke your residence permit retroactively as from the month in which the salary was not paid or was not paid in time. In principle, the IND have twelve year time to find out the discrepancies. Also, the employer can receive a fine up to €8.000.

8. How much is a sick employee entitled to his pay?

In accordance with the Dutch labour laws, the employee is entitled to, at least, 70% of his standard salary during his sickness. The salary payment during the sickness may not be lower than the minimum salary. In many sectors, there is a collective labour agreement, which stipulates that the employee is entitled to 100% of his standard salary during the first year of his sickness, that the employee is entitled to 70% of his standard salary during the second year of his sickness. Under certain circumstances employers have the right to dismiss a sick employee when:

• The employee has been sick for over 104 weeks; and,
• The employee cannot recover in the coming 26 weeks; and,
• The employer has got the permission from the UWV.

During the sick leave, employees have the obligation to be treated properly and be reviewed by the company’s medical practitioner to analyse the employee’s remaining capability to perform adjusted work. Together with company doctor, the company should improve the environment of the work place and to make necessary changes to the scope of your work, with the purpose of facilitating your return. Companies can withhold the salary if the employee refuses to cooperate and/or to carry out adjusted work.

9. Am I entitled to my salary if I have to take care of my sick family member?

According to the Work and Care Act, employees are entitled to their salaries if they are absent at work because they have to take care of their sick family members, which is known as the care leave (‘zorgverlof’). However, the length of the care leave cannot be more than twice that of  his/her weekly work time. For example, if you work four days a week, then you are entitled to have a maximum of eight days of paid care leave per year. Any care-leave exceeding the statutory protection may result in no-pay leave, and the maximum length of the no-pay care leave is six times that of your weekly work time.

10. I was planning to have my vacation but I would like to cancel it due to the corona lockdown. Is it possible?

Unless the company does you a favour or it is stated in their internal policy, the employer has no obligation to approve your request of cancellation.

11. I left the Netherlands to somewhere safer during the corona virus crisis. Am I entitled to my pay?

A unilateral contract modification by the employee with regard to areas such as workplace and worktime is not allowed. The employee may not be entitled to his/her salary in this case. Meanwhile, you have to be aware that, as a residence permit holder, you are supposed to have your main residency in the Netherlands. Depending on the nature of your residence permit, should you stay too long outside the Netherlands, the IND can revoke your residence permit.

12. Can the company check my body temperature?

No. This is personal privacy and shall not be deprived of by employers for any reason. If an employer is concerned, he/she should grant the employee sick leave. Only the corporate’s medical practitioner can examine the employees, whilst the patient’s substantive health information must be kept confidential.

13. Am I entitled to my salary if I have zero hour (oproep) contract and have no work due to the corona lockdown?

Yes, only if you have been working for more than three months. Your salary amount will be determined by the average amount you have worked over the last three months. For example, if you worked 90 hours in March, 110 in April and 105 in May, then you are entitled to get the salary of 102 hours per month starting from June.

14. My company has stopped paying my salary. Today is 5 July. I have not received last month’s salary. What shall I do?

The company is obliged to pay out your salary no later than the last day of the month. In this case, you need to write an e-mail/letter to the company, asking them to pay out your salary. If they do not pay, you should look for a lawyer and start a legal procedure. It is called an interim procedure (‘kortgeding’ in Dutch). Normally, the court will arrange a hearing in six week time upon receipt of your draft subpoena.  If you are staying in the Netherlands on a highly skilled migrant permit, this payment default can have a serious impact on your residence rights. See question 7.

15. I am here on a search year permit. Am I entitled to unemployment benefits?

In order to qualify for unemployment benefits, you need to meet the following primary requirements.  First, you have worked at least 26 weeks over the past 36 weeks. Second, the unemployment must not be caused by the employee himself/herself (e.g. his/her own resignation or dismissal due to serious fault committed by the employee). Third, the employee must belong to available labour force when he/she is asking for the unemployment benefit. Therefore, for example, a fulltime student is not considered as an available worker.

16. What is a settlement agreement?

This is a contract of mutual consent by both the employer and employee, to agree upon the termination conditions of the employment contract, such as the reason for termination, termination date, dismissal compensation, survival of contractual non-competition clauses etc. After signing this contract, employees have an unconditional cooling off period of 14 days, or 21 days if this cooling off period is not specified in the contract itself. During this cooling off period, the employee has the rights to change his/her minds and to withdraw his/her consent. A properly drafted settlement agreement can be used by the employee to ask for unemployment benefits. Also, you can negotiate about the termination date. If you are here on a highly skilled migrant permit or an EU blue card, the more time that you can get from the company the better. Therefore, if you have received a settlement agreement from your employer, please contact Mynta Law.

17. How long will my unemployment benefits last? And how much?

If you meet the requirements, you are entitled to at least three months of unemployment benefits. The amount of the first two months will be 75% of your previous gross income respectively; whilst it will be 70% starting from the third month and so on. Basing on how long you have worked before, the maximum length is 24 months.

18. Are blue card holders and highly-skilled migrants entitled to unemployment benefits?

Yes, for a maximum period of three months. Please be aware that the IND can revoke your residence permit if you remain unemployed for more than three months.

19. I quitted my job voluntarily. Can I recall my resignation?

The employer is obliged to confirm the intention of the employee. Under special circumstances the employee may be able to recall his/her resignation.

20. Can I get unemployment benefits if I quit my job voluntarily?

No.

21. Can I get unemployment benefits if my fixed term contract expires and my employer declines to renew the contract?

Possible. It depends on whether you meet the criteria of the unemployment benefits. For example, have you worked 26 weeks over the last 36 weeks?

22. Are there any obligations while I am receiving unemployment benefits?

You are obliged to look for jobs proactively during the unemployment period and to report your job hunting activities to the UWV regularly. You are also obliged to accept the advice given by the UWV.

23. As a highly-skilled migrant or blue card holder, can I stay in the Netherlands if I am unemployed for more than three months?

According to the Dutch immigration laws, blue card holders and highly skilled migrants are given, at most, three months to look for another job when they become unemployed. The Dutch Immigration Department (IND) can revoke your residence permit if you are unemployed for more than three months. However, you can file a dissenting opinion once you receive an intention of revocation from the IND. If the IND revokes your permit, you are allowed to file an objection. Before the IND declare your objection unfounded, your residence card remains valid.

24. What will happen if I lose my job in the course of the application for permanent residence?

You are obliged to inform the IND about your latest circumstances. It may affect the outcome of your application. Therefore, please contact Mynta Law for professional advice in advance.

25. My company goes bankrupt. Will I get paid?

According to section 40 of the Dutch Insolvency Act, the appointed liquidator has the right to dissolve the employment relationship between the bankrupt corporate and its employees. The notification period is six-week at most, and the salaries will be paid by the UWV. Employees are entitled to unemployment benefits after the notification period.

If you have more questions, please contact Mynta Law.

Telephone     : 070 205 1162

E-mail           : info@mynta.nl

Website        : www.mynta.nl

The graduation season is approaching and most students are probably facing a tremendous amount of stress from both the thesis writing and the sluggish job market caused by the coronavirus crisis. Some are holding an expectation that the situation may alleviate soon with their extended stay in the Netherlands on their Orientation Year Visa (also known as search year visa or zoekjaar hoogopgeleiden). This article will tell you some hidden secrets about the Dutch search year visa.

According to the Dutch Immigration Decree, applicants can apply for the search year visa within three years after their graduation. The validity of the search year visa is one year. If you are capable of finding a job within the validity of your search year visa, you will be able to convert your purpose of stay from “search year” to “highly skilled migrant” and you only need to meet the reduced salary threshold of €2.423 gross per month (standard 2020). For instance, if your search year visa is valid from 1 January 2020 to 1 January 2021, you must get a job, earning a minimum gross salary of €2.423 per month before 1 January 2021. You may then convert the search year visa into highly skilled migrant visa once you get employed and sponsored by a recognised sponsor (‘erkend referent’ in Dutch). If you cannot find a job as a highly skilled migrant before the expiry date of your search year visa, the income threshold will then increase from €2.423 to either €3.381 (applicable to people aged below 30) or €4.612 (applicable to people aged 30 or above).

Nevertheless, what is untold is that the €2423 threshold is still applicable even if the fresh graduate chooses not to acquire the search year visa. The latter is actually the preferred option. Why? Thanks to the Dutch Royal Decree of Foreigners’ Employment, the €2423 threshold remains applicable if the graduate fulfils the conditions of applying for the search year visa even if he does not apply for a search year visa. For example, Andrew graduated with a bachelor degree from the University of Amsterdam on 26 April 2020. Given that the applicants have three-year time to apply for the search year visa after graduation, Andrew can principally apply for the search year visa before 26 April 2023. By getting the search year visa on 26 April 2023, the €2.423 threshold will remain applicable until 26 April 2024 (ie. before the expiry date of the search year visa). So, the hidden secret is that: Do not hurry to get your search year visa!

Let us give you two vivid examples.

Andrew

Andrew, a fresh graduate in the Netherlands, obtained his degree on 26 April 2020. On the same day, he applied for the search year visa. Later on, the IND granted his search year visa application, and Andrew got a search year visa retroactively as from 26 April 2020. The search year visa is valid until 26 April 2021. Later, Andrew gets a job offer from the Dutch headquarters of a US multinational. His contract with the US multinatinal begins on 26 July 2020 and it is a six-month temporary contract.  Andrew works there as a marketing assistant. The US multinational is also willing to help Andrew apply for a highly skilled migrant visa straightaway. Andrew happily accepts this offer. Then, Andrew gets a highly skilled migrant visa as from 26 July 2020. The highly skilled migrant permit is valid until 26 January 2021. Unfortunately, Andrew gets informed around mid-December that the US multinational does not want to renew his employment contract and he will be dismissed by operation of law as from 26 January 2021. Andrew realizes that there will be only one-month left from the time he gets informed about until the termination date of his employment agreement. He tries to look for jobs but there is no reply at all due to Christmas holiday. Eventually, Andrew’s visa expires and he remains unemployed. As he applied for the search year visa when he graduated, Andrew cannot apply for the search year visa again. More tragically, Andrew turns 30 years old on 1 December 2020. This means that the income threshold for a highly skilled migrant without holding a valid search year visa is €4612. At the end, Andrew has to leave the Netherlands in spite of the huge amount of money, time and energy he has invested in his potential career in the Netherlands.

Elizabeth

Elizabeth is Andrew’s classmate. She graduated on the same day (ie. 26 April 2020) as Andrew did. However, she did not apply for the search year visa right away. Instead, she kept her student visa and is able to get a job within three months after her graduation. Coincidentally, she enters the same US multinational as Andrew does and gets the same job with the same employment conditions. The US multinational is also willing to help Elizabeth apply for a highly skilled migrant visa right away. Elizabeth gets her highly skilled migrant visa, valid from 26 July 2020 to 26 January 2021. In mid-December, Elizabeth also gets informed that her employment contract will not be extended. She starts looking for jobs in the Netherlands and there are two scenarios.

The first scenario: Elizabeth does not manage to find a job in the remaining one-month period before her highly skilled migrant visa expires. Therefore, she decides to apply for the search year visa as she has never applied for it before. The application gets approved and then her stay in the Netherlands can be extended by one year, with the purpose of looking for another job.

The second (better) scenario: Elizabeth manages to find another job during that one-month period and her new employment begins on 26 January 2021 as a permanent employee at a Dutch company. Pursuant to the Dutch Royal Decree of Foreigners’ Employment, the €2423,- income threshold still applies to Elizabeth as she has never applied for the search year visa before. At the end, Elizabeth gets a new highly skilled migrant visa valid for five years.

You may ask how Elizabeth manages to stay in the Netherlands without applying for the search year visa after her graduation. In fact, Elizabeth did it legally and there are various ways to do it. Hereafter, we tell you about the ‘administration period’.

According to the Migration Policy of the Dutch Ministry of Justice and Security, graduates in the Netherlands enjoy an “administration period” of three months. In other words, if your student visa expires within three months after the date of graduation, the Dutch Immigration Department (IND) will not revoke or curtail the validity of the visa even if your school informs IND that you have graduated. On the other hand, if your student visa is valid for more than three months after your graduation, IND will only curtail it to the end of the three-month period after your graduation. To conclude, generally, you will have a three-month period of legal stay in the Netherlands after your graduation without the need of applying for the search year visa.

With regard to the other ways of extending your legal stay in the Netherlands, please refer to our article “Search year visa about to expire? But you have not found a job yet?”

Should you have more questions about the search year visa, please feel free to contact Mynta Law.

Tel: +31 (0)70 205 1162 / 1160

E-mail: info@mynta.nl

Due to the outbreak of the coronavirus COVID-19, many Dutch companies have suspended their recruitment. Unfortunately, search year visa holders (also known as ‘zoekjaar’ in Dutch) are probably one of the most affected groups in this crisis. If you have not found a job, what are your options to continue staying in the Netherlands? This article will elaborate on various options that may help you stay in the Netherlands legally.

1. Make optimal use of the remaining time of your search year visa

If there are a few months left on your search year visa, please don’t give up. Make optimal use of the remaining time of your search year visa. Send out another job application letter and curriculum vitae. Maybe a small miracle will happen and you will get a job. If you are currently working for a Dutch company that does not have the status of recognised sponsorship, maybe you can tell your boss about the payroll option. In the following context, the payroll option will be further explained.

2. Partner Visa

Do you have partner in the Netherlands? If your partner has his/her own independent residence permit (such as, highly skilled migrant, search year or student), you may continue your residence in the Netherlands through changing your search year visa to a partner visa. The partner visa is open to both married and unmarried couples of the different or same gender. Depending on your partner’s nationality and residence title, you may be asked to provide the IND with different kinds of documents. A lot of people do not know that foreign students, researchers and search year visa holders can also sponsor a partner.

3. Student Visa

Going back to school is a practical way to extend your stay in the Netherlands. Due to the outbreak of the COVID 19 virus, a lot of Dutch universities are seriously concerned that they will not be able to recruit enough international students this year. This might be good news for you. Why? First, the fewer the applicants, the greater the chance of acceptance. Although a lot of universities are saying on their website that the deadline for admission has passed, my advice is that you should give them a call or send them an email. There is a chance that they still have some vacant places. Furthermore, as many prospective international students are stuck in their home country (due to their local lockdown), you may have a higher chance of getting a scholarship from the university. This is due to the fact that the financial budget is probably still there. This year, you will have fewer competitors for the scholarship as well.

4. Startup Visa

If you have innovative business ideas and are eager to become an entrepreneur, you may be qualified to obtain a start-up visa as an entrepreneur. However, you need to get support from a recognized facilitator. With the support from the recognized facilitator, you can obtain a start-up visa, which is valid for one year initially. After one year, if your facilitator still supports you, your visa can be further extended for another 2 years. However, please be aware the name ‘start up’ can be rather misleading. Many people mistakenly believe that they can find a few random businessmen or businesswomen to be their facilitators, as long as their business idea is innovative. In fact, our opinion is that the government should better change the name of the visa to ‘facilitator visa’. In practice, the Dutch Ministry of Economic Affairs pay much more attention to the reliability of your facilitator (instead of the innovativeness of your business idea). If your random facilitator is not recognised by the Ministry, your chance of getting an approval is limited. It takes time to find a recognised facilitator and it also takes time for the facilitator to get acquainted with and get committed to helping you out.  

5. Payroll Company

If you have found a Dutch company willing to hire you but this Dutch company itself does not have the status of recognised sponsorship, you may ask the Dutch company to consider hiring you through a payroll company. On the basis of Dutch labour laws, if you are employed by a payroll company, the payroll company can second you to work at another company that does not have the status of recognised sponsorship. Between the payroll company and the ‘de facto’ company, a service agreement will be signed. The payroll company will sign a labour agreement with you. Through doing so, the ‘de facto’ company will pay service fees to the payroll company. The payroll company will pay out your salary after deducting social premiums and her service fees. The payroll company needs to be responsible for you and responsible to the IND. The payroll company needs to take care of your interests as an employee. The payroll company should also inform the IND about all your relevant changes in a timely manner.

6. Ask your company to apply for the status of recognised sponsorship

If you are currently working for a company that does not have the status of recognised sponsorship and the remaining time of your current permit is sufficient, you can ask your current boss to apply for the status of recognised sponsorship. If the company was founded many years ago and it has good tax records, the chance of getting the status is rather high. Nevertheless, please be aware that it takes the IND about three months to process the application for recognised sponsorship. If the IND have questions about the company, the IND can ask for additional supporting documents from the company. This will delay the processing time. In this situation, you’d better ask the company to look for a payroll company to help you bridge this short period.

7. European Blue Card

The European blue card is meant for highly qualified migrant workers. Standing in contrast to the highly skilled migrant visa, the blue card scheme is arranged at European level, pursuant to the EU Blue Card Directive, and it does not require your employer to have the status of recognized sponsorship. Therefore, it can be procedurally easier to obtain a European blue card. However, the income requirement is €5403 gross per month (excluding 8% holiday allowance).

8. PhD

If you are interested in doing academic research, you can look for a promotor (ie. a professor or associate professor). They may be interested in admitting you as a PhD student. The traditional PhD positions at a Dutch university (also known as ‘aio’ in Dutch) come with a decent salary. Nevertheless, if you cannot find a paid PhD position, you can also self-finance your PhD position. Under the EU directive 2016/801, as a self-financed PhD student, you can get the same scientific researcher visa. This visa allows you to work as an entrepreneur and as an employee without a work permit.

9. Internship

In April 2018, the Dutch Minister of Social Affairs changed one of the Ministerial Policies. People who graduated within the last 2 years can ask for a ‘single permit’ for the purpose of doing an internship. The internship needs to be directly related to your study field. You will need to demonstrate that the learning elements of this internship are the most salient points. The purpose of the internship may not be profit-making for the internship company. Also, you need to receive a decent internship compensation. The ‘single permit’ for doing an internship can be issued for a maximum period of 12 months.

10. Procedural Approaches

As the last resort, Mynta Law can go through various legal procedures to extend your legal stay in the Netherlands. The Dutch Immigration Act stipulates that the applicants have legal residence in the course of the pending legal procedures. For the time being, you can exercise your rights as a legal resident, including continuing to look for a new job. Through different legal procedures, you can obtain an additional period of three to six months or longer.

Should you have any questions about your visa options, please feel free to contact Mynta Law.

Tel: 070 205 1162 or 070 205 1160

E-mail: info@mynta.nl