Excursus: “Tech sector: Termination of employment contract for non-EU/EFTA nationals > right of residence?”

Tech sector: Termination of employment contract for non-EU/EFTA nationals

Publication date: March, 10th 2023

Introduction

A wave of layoffs is currently rolling through the “tech sector” worldwide.

Zurich has developed into an IT hub and is therefore also affected by the wave of layoffs.

Table of Content

Tech sector weakens

Some companies in the technology sector are faced down with “a slowdown in digital advertising”.  

Whether and to what extend this is also a consequence of the increased use of ad blockers (also AdBlocker) by users in not disclosed.

Bad news

  • Alphabet
    • Google’s parent company “Alphabet” has announced it will cut about 12‘000 jobs worldwide Alphabet cuts 12,000 jobs after pandemic hiring spree, refocuses on AI
    • More than 5’000 people now work in Zurich, Google’s most important development site outside the US
    • The number of terminations of employment contracts in Switzerland affected by the cuts is not yet known
  • Meta (formerly named facebook)
    • «Meta» announced the elimination of 11’000 jobs
    • Switzerland will not be spared from these job cuts
    • Some of the approximately 300 employees in Switzerland will be laid off  

That’s why there’s a lot of uncertainty in these Zurich “tech companies”.

Many foreign employees affected

The tech companies” have not found enough skilled workers in Switzerland for their expansion policy and therefore recruited specialists from all over the world to pitch their tents and work here thanks to an employment contract with these companies.

Some of these workers are now to be laid off after storm clouds appeared in the revenue sky.

Non-EU/EFTA-employees particularly affected

These “tech companies” employ many foreign workers, especially from so-called “non EU/EFTA countries” respectively third countries.

Not only do they lose their jobs. They also face the question whether they have to leave Switzerland due to lack of work.

Right to stay?

The consequences of termination are listed below for

  • EU/EFTA citizens
  • Non-EU/EFTA nationals 

EU/EFTA citizens

  • EU/EFTA citizens have the right of residence in the territory of the other contracting party after termination of the employment relationship (in Switzerland, art. 4 in the Annex I of the Ordinance on Admission, Period of Stay and Employment [ASEO])
  • The conditions for the right of residence vary depending on the reason for termination and the status of the EU-citizens (see index)
  • The right of residence also applies to family members
  • Please note the safeguard clause with regard to workers from Croatia, which will apply from 01.01.2023

Reasons for termination

Status

Reach retirement age

Right of residence if, at the time of termination of employment there has been residence for three years and prior employment for at least one year.

Permanent incapacity for work:

Right of residence if, after two years of continuous residence there is permanent incapacity for work. 

If the permanent incapacity for work is due to an occupational accident or an occupational illness that results in an entitlement to a pension, the right of residence is granted regardless of the previous duration of residence.

Temporary, involuntary incapacity for work:

Conditional right of residence, i.e. in case of a residence permit (5 years) an extension of 1 year can be granted after at least 12 month of unemployment.

Source: Verbleiberecht | aufenthaltsbewilligung-arbeitsbewilligung.ch

Non-EU/EFTA nationals

Non-EU/EFTA nationals can usually stay in Switzerland for six month after losing their job and look for a new one.

For this purpose, you must apply to the competent cantonal authority for a permit to seek employment. The contact addresses for the cantonal labour market authorities can be found here:

Change of job for an employee from third country nationals within Switzerland

«Under Art. 55 of the Ordinance on Admission, Period of Stay and Employment (ASEO), holders of a short-term (“L”) residence permit may be allowed to change job if they cannot continue to work for their current employer or if they cannot reasonably be expected to do so. However, they must remain within the same sector as well as the same profession, and the change of job will be permitted only if it has not been necessitated by the employee’s own behavior. Applications for changes of job should be sent to the competent cantonal authority.

As a general rule, holders of “B” permits can change job without further authorization (Art. 38 para. 2 Foreign Nationals and Integration Act [FNIA]). However, if the residence permit has been granted to allow the holder to take up a specific job and is expressly linked to a condition relating to the labour market, an application to change job should be sent to the competent cantonal authority.

Further information can be found under sections 4.5.2.1 and 4.5.3.1 of the FNIA directives. 

Weisungen AIG, Kapitel 4 (PDF, 1 MB, 01.02.2023)»

Source: FAQ – Arbeit | sem.admin.ch

New Job in Switzerland?

For the non-EU/EFTA workers concerned, the only option usually left is to find a replacement job in Switzerland as quickly as possible or to return to their home country.

Conclusion

The result is an unpleasant situation for all workers affected by the wave of layoffs, but especially for those from the so-called “third countries”.

It is to be hoped that the “tech companies” will apply socially acceptable terms of dismissal for those affected and, if necessary, draw up an advantageous social plan.

The formerly explosive recruitment of foreign workers requires fairness in layoffs.

Further Information

Source

LawMedia Publishing Team

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