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Eléonore Gallopin, Esq.
Suter Howald Rechtsanwälte
Zurich, Switzerland

  1. Legal Background

In February 2014, the Swiss people adopted the popular initiative “Against mass immigration” aiming to amend Switzerland's immigration policy and introducing art. 121a of the Swiss Federal Constitution.

The initiative targeted the introduction of a new system of admission of foreign nationals to Switzerland, which would control immigration through maximum numbers and quotas and give priority to the local workforce.

In December 2016, after political debate, the Parliament passed the revision of the Federal Act on Foreign Nationals1 on the implementation of Art. 121a of the Swiss Federal Constitution. The consultation procedure on the amendments to the relevant regulations involving various interest groups took place during the summer 2017. In December 2017, the Federal Council adopted the amended ordinances taking into account the results of the consultation procedure. The new regulations have become effective on 1 July 2018.

The new regulations primarily introduce a “job registration requirement” for occupation categories in which the unemployment rate throughout Switzerland has reached a specific threshold.

  1. Content And Aim of The “Job Registration Requirement”

The “job registration requirement” characterizes as the obligation for Swiss companies having a vacant position in Switzerland in an occupation category affected by a certain unemployment rate to register the vacant position with the Regional Employment Center (hereafter: REC)2 before making the job advertisement available to the public.

The job registration requirement aims to give jobseekers registered with a REC in Switzerland priority over other non-registered jobseekers and thus to exploit the potential workforce already available in Switzerland.

As of 1 July 2018, the job registration requirement applies for occupation categories where the unemployment rate is equal or superior to 8% throughout Switzerland. In a second implementation step, as of 1 January 2020, this threshold will be reduced to 5%. Employers and authorities should herewith have time to implement new processes and allocate the necessary resources.

The Swiss State Secretariat for Economic Affairs3 (hereafter: SECO) sets out, in a public list4, which occupation categories have an unemployment rate of 8 % or more and are therefore subject to the job registration requirement. The current list is valid from 1 July 2018 up to and including 31 December 2019. The classification of the occupations is based on the Swiss Professional Nomenclature 20005 (hereafter: SPN 2000).

In order to be able to assign (or not) a vacant position to an occupation category mentioned on the SECO list, the companies have to classify all occupations within the company according to the SPN 2000. Relevant is thereupon not the title of the position of the future employee, but the tasks that fall within his or her sphere of responsibility. Thus, each position in a company must have a predefined sphere of responsibility.

In order to know whether an occupation is subject to the registration requirement, an employer may also enter the occupation title in an online “check-up tool”6. The check-up tool indicates under which occupation category the specific occupation is classified. The check-up tool is currently available in the Swiss national languages German, French and Italian.

The job registration requirement does not apply in following cases:

  • the job vacancy was filled by a jobseeker registered with a REC;
  • the position is filled by internal staff employed in the company or group for at least 6 months (this also applies to apprentices hired in the following of an apprenticeship);
  • the employment is of a determinate duration of maximal 14 calendar days;
  • the job vacancy was filled with a close relative of employment of persons connected with an authorised signatory in the company.
  1. Procedure

After registration of the vacant position with the REC, the job advertisement will be available for a period of five working days exclusively to the jobseekers registered at the REC and to the officers of the REC. During this period, there is an official prohibition on publication of the job advertisement on other platforms.

At the same time, within three working days, the REC must deliver suitable application files to the recruiting employer. The recruiting employer must invite suitable job seekers to an interview or a professional aptitude test and inform the Regional Employment Centre of the (positive or negative) outcome of the recruitment procedure. Explaining the reasons of rejection of an application is however not mandatory.

After the five-day publication ban, the vacant position may be advertised on public platforms and the usual recruitment procedure may take place.

  1. Sanctions

According to art. 117a of the Swiss Federal Act on Foreign Nationals, anyone who intentionally violates the job registration requirement or the obligation to conduct an interview or a professional aptitude test is liable to a fine of up to 40,000 Swiss francs. If the offender acts negligently, he shall be liable to a fine up to 20,000 Swiss francs.

  1. Summary

The obligation to register job vacancies affects all Swiss employers (including Swiss branches of foreign companies) in their recruitment processes for new employees. The job advertisements have to comply with particular content requirements. Companies have to classify all occupations within the company according to the SPN 2000, in order to be able to determine, in case of a job vacancy, whether this occupation is subject to the job registration requirement or not. If the job vacancy is subject to mandatory registration, the above-mentioned special procedure has to be followed. If the job vacancy is not subject to mandatory registration, the companies may proceed with their usual recruitment process.

It should be emphasized that the new job registration requirement does not replace the priority of local worker in case of hiring non-EU/EFTA nationals. In such case, a Swiss employer wishing to hire non-EU/EFTA nationals remains obligated to prove that they have not found any candidate capable of performing the job on the local labor market. Furthermore, the obligation to register a job vacancy is not applicable in case of deputed workers, as deputed workers are not hired locally by a Swiss company but remain employees of a foreign company.

For further information on this topic please contact Eléonore Gallopin at Suter Howald Attorneys at Law by telephone (+41 44 630 4811) or email (eleonore.gallopin@suterhowald.ch). The Suter Howald Attorneys at Law website can be accessed at www.suterhowald.ch.

1 Ausländergesetz/Loi fédérale sur les étrangers/Legge federale sugli stranieri

2 Regionales Arbeitsvermittlungszentrum/Office régional de placement/Ufficio regionale di collocamento

3 Staatssekretariat für Wirtschaft/Secrétariat d’Etat à l’économie/ Segreteria di Stato dell'economia

5 Schweizer Berufsnomenklatur/ Nomenclature suisse des professions/ Nomenclatura svizzera delle professioni