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What are the requirements relating to advertising positions?
In principle, a job advertisement may state only job-related requirements which are relevant for the job. Certain groups should not be discouraged or excluded from applying. In job advertisements employers should use neutral wording, such as ‘person’ or ‘candidate’. The use of gender and age-related wording could be interpreted as discrimination and should therefore be avoided. Wording relating to minimum years of experience is generally allowed.
What can employers do with regard to background checks and inquiries in relation to the following:
(a) Criminal records?
Employers may ask employees to submit a certificate of conduct. This is a document in which the state secretary for security and justice declares that the applicant has committed no criminal offences that are relevant to the performance of his or her duties. For example, a taxi driver who has been convicted several times of driving under the influence or an accountant who has been convicted of fraud are unlikely to be issued with a certificate. The employee can apply for a certificate of conduct at the Population Affairs Department of the municipality in which he or she is registered in the Municipal Personal Records Database. The application is sent to Justis, which issues certificates on behalf of the state secretary.
(b) Medical history?
The Medical Examinations Act applies to medical checks. The act provides that an employer can ask questions about the medical condition of an individual and request a medical examination in connection with the conclusion or amendment of an employment contract. The nature, content and scope of the examination must be limited to the purpose for which it is performed. The selection of employees with a view to future absenteeism due to sickness is not a legitimate purpose for an examination. Such examinations may be carried out only if special requirements with regard to medical suitability apply to the position in question (eg, pilot of a commercial aircraft).
Medical suitability for a position relates to the protection of the health and safety of both the individual and third parties during performance of the work in question. No questions may be asked or medical examinations performed that constitute a disproportionate invasion of the individual’s privacy.
(c) Drug screening?
Examinations focused on the use of alcohol, drugs and medicines are possible only for very specific positions in which they are justified by the safety risks involved in connection with the work.
(d) Credit checks?
Only commercial credit providers can apply to the Credit Registration Agency for for credit information. The agency keeps a central register of all credit liabilities in the Netherlands. This includes personal loans and ongoing credit, as well as credit cards and substantial hire-purchase agreements. As only credit providers have access to the database, it is impossible for an employer to consult the agency. The employer may ask an employee to provide it with an extract from the agency database, although this is unusal. The employer must have a legitimate interest in obtaining this information. There should be no less intrusive alternative available and interference with the employee’s privacy should not exceed what is strictly necessary to obtain the information.
(e) Immigration status?
Employers are required to request relevant immigration information (eg, regarding a work or residence permit).
(f) Social media?
Employers can generally use information from social media sites when selecting candidates, since this is considered to be public information. Employers should bear in mind that candidates may not have made information available online for the purpose of screening a future employer. Also, information may have been copied, meaning that the employer cannot rely on the fact that it is current. Moreover, employers cannot rely on the fact that the information has been made public by the candidate; mistaken identity cannot be ruled out. Employers should therefore preferably obtain the candidate’s consent or mention in the job advertisement that internet screening is part of the recruitment process.
Wages and working time
Is there a national minimum wage and, if so, what is it?
Yes. On the basis of the Minimum Wage and Minimum Holiday Allowance Act, all employees aged 23 and above are entitled to a gross minimum wage per month. As of July 1 2015, the monthly minimum wage is €1,507.80 gross. Employees under the age of 23 are entitled to a certain percentage of this minimum wage.
Are there restrictions on working hours?
Yes. Employees’ working hours are restricted by the Working Hours Act. The act contains a number of restrictions, inlcuding in relation to maximum working hours, breaks andresting hours, night shifts, on-call duty and Sunday labour. Most restrictions do not apply to employees earning more than three times the minimum wage and minimum holiday allowance. Maximum working hours are:
- 12 hours per shift, 60 hours per week and 48 hours per week in a period of 16 consecutive weeks; and
- 55 hours per week in a period of four consecutive weeks.
Rest hours are set at 36 hours in each consecutive period of seven times per 24 hours, or 72 hours in each consecutive period of 14 times per 24 hours, which can be split into periods of at least 32 hours each.
Hours and overtime
What are the requirements for meal and rest breaks?
Breaks are set at a minimum of 30 minutes (which can be split into breaks of at least 15 minutes each) for shifts of more than 5.5 hours, or a minimum of 45 minutes (which can be split into breaks of at least 15 minutes each) for shift of more than 10 hours.
How should overtime be calculated?
There is no law on working or calculating overtime. Most collective bargaining and individual employment agreements contain clauses on overtime and how overtime pay should be calculated.
What exemptions are there from overtime?
Is there a minimum paid holiday entitlement?
Yes. The statutory minimum holiday entitlement per year amounts to four times the number of working hours per week (eg, a minimum of 20 days per year in case of full-time employment). Individual employment agreements and collective bargaining agreements often contain more substantial entitlements.
What are the rules applicable to final pay and deductions from wages?
Employers must deduct payroll tax from employees’ wages. Payroll tax consists of:
- wage tax (wage-withholding tax);
- employee and national insurance contributions; and
- an income-dependent Healthcare Insurance Act contribution (employer's contribution towards healthcare insurance).
What payroll and payment records must be maintained?
The employer must keep records of wages, including tax-exempt reimbursements. The employer must provide each employee with a payslip for each payment it makes to the employee. In addition, the employer must inform each employee on an annual basis of the total amount of wages earned, wage withholding tax and social security withheld.