From 1 January 2020, the occupation‑specific unemployment rate threshold for job vacancy reporting obligations was lowered to 5%. The impact of this adjustment on Swiss‑based employers should be examined.
The approval of the Switzerland‑wide referendum on the “Stop Mass Immigration” initiative on 9 February 2014 has given rise to a number of changes in Swiss immigration law. Employers have been required since 1 July 2018 to report job vacancies concerning all professions and industries featuring a Switzerland‑wide unemployment rate exceeding 8%. This requirement is now set out in law in Article 21a of the Foreign Nationals and Integration Act (FNIA).
The new legislation requires employers to consider local candidates first, particularly in professions likely to host a sizeable number of available candidates due to a high unemployment rate, before recruiting outside of Switzerland is permitted.
This is in keeping with the requirement set out in the Swiss immigration code (Art. 21 FNIA) pertaining to non‑EU citizens hired locally, where it is established that preference shall be afforded to applicants from Switzerland and other EEA countries (excluding Croatia). In some countries this process is known as a labor market test. The biggest difference between the reporting obligation and this Swiss/EEA citizen preference rule is that it pertains only to certain professions. There is merely an obligation to report the vacant position, while there is no obligation to submit proof to the authorities of a lack of suitable candidates available locally and within the EEA (excluding Croatia).
The major difficulty faced by Swiss lawmakers in implementing the “Stop Mass Immigration” initiative involved refraining from violating the Agreement on the Free Movement of Persons (AFMP), as the AFMP establishes the right of EU citizens to seek and obtain employment in Switzerland. Any restrictions placed on the hiring of EU citizens could therefore have led to Switzerland violating the AFMP and the corresponding bilateral agreements.
The compromise reached by Swiss lawmakers involved the introduction of a requirement for new vacancies in professions with high unemployment to be reported to the local unemployment offices. This mere obligation to report the vacancies was deemed by conservatives to be insufficient.
The unemployment rate threshold was lowered from 8% to 5% as of 1 January 2020. It would seem reasonable to assume that a lowering of the threshold would lead to more professions being affected, however the opposite has held true due to Switzerland’s stable economic growth and declining overall unemployment rate. This means that fewer professions need to be reported, with the new list of reportable professions down to 89 of 257.
The overall impact on Swiss-based employers has decreased significantly, with the majority of affected professions being blue-collar occupations.
Updated list with affected types of professions
Furthermore, the Federal Council has revised the scope of professions and refined the list of affected profession types, which has in turn served to improve the degree of clarity among employers. This enables employers to more effectively identify the different profession types as well as to avoid performing unnecessary reporting and incurring corresponding recruiting process delays. The revised list exhibits a number of major changes from the previous list, for example the elimination of the reporting requirement for marketing and public relations professions with effect from 1 January 2020.
A list containing the affected professions and industries is published and updated each year and can be found here.
Apart from the threshold reduction to 5%, however, the reporting requirements in 2020 have remained unchanged and are defined as follows:
- For a limited period of five working days, the positions in the affected professional categories will be accessible only to individuals registered with a cantonal public unemployment office. Employers are not permitted to advertise the job vacancies on other platforms until the expiration of the aforementioned period.
- Cantonal unemployment offices will communicate all suitable candidates to employers during the first three working days following the publication of these job vacancies.
- Employers are required to inform the cantonal unemployment office if any referred candidate is selected to partake in the interview process but are not required to provide justification in the event that none of the referred candidates are deemed to be suitable for the position.
The primary exceptions to employers’ reporting obligations have also remained identical.
- The vacant position is filled by a current employee already working at the company or in the group, including interns and apprentices demonstrating a minimum employment duration of six months
- The duration of the employment contract does not exceed 14 days
- The vacant position is filled by a close relative of the company’s owner, such as a spouse, registered partner, or sibling
Fines of up to CHF 40,000 are imposed in the event of major non‑compliance violations, while minor infractions incur a CHF 20,000 penalty.
Next steps and outlook
Prior to announcing a vacancy, employers should make sure to check online in order to ascertain whether the reporting obligations apply to that specific profession. Furthermore, employers would be well-advised to modify their recruiting processes in order to ensure compliance with the applicable reporting requirements.
Following the aforementioned compromises made during the implementation of the reporting obligation, the Swiss Conservative Party launched a new initiative called “Moderate Immigration” aimed at regulating and further restricting immigration to Switzerland. If approved, the initiative will require the Swiss Federal Council to suspend the Agreement on the Free Movement of Persons with the EU within a period of one year.
The initiative is expected to be put to a vote in mid-2020, and a majority of Swiss voters supporting this initiative would lead to Switzerland’s suspension of the Agreement of the Free Movement of Persons. The Federal Council would then be tasked with negotiating a new bilateral agreement governing immigration between Switzerland and the EU, which would likely involve stricter immigration requirements for citizens of EEA countries (excluding Croatia) as well as the introduction of quotas.
We are closely monitoring this initiative and will provide updates on this blog whenever new information becomes available.