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Old 22.07.2015, 17:00
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Have a contract, but don't have the right to be paid?

Hi all,

I thought that the many experts in this forum might be able to give some advice on my situation. I am an American, employed at a Swiss educational institution. I renew my B permit on a yearly basis. This year I am switching from positions in the institution, requiring a completely new contract. My old employee contract ended the 31st of June, the new one to begin 1st of July.

Due to a major lapse in judgement on the part of HR, the application to renew my permit was not submitted in time for July, however the company already generated a contract which was signed by all appropriate parties and myself, stating that my contract "starts retroactively on the 1st July, 2015 until July 1st 2017". Here is the issue: my company states that because I do not have the right to live and work in switzerland (as I do not have a visa), I therefore will not be paid for the month of July. I am currently back home in the US, waiting (and working, as per my contract). Is it true that I do not have the right to be paid for this month, even though I was 1. assured that I would be and 2. I have a contract of employment stipulating this? Can one be contracted by a Swiss company, without a work permit to work there but live outside Switzerland and still receive salary? Any information anyone may have on my rights would be greatly appreciated.

With hearty thanks
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Old 22.07.2015, 17:04
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Re: Have a contract, but don't have the right to be paid?

If you are working for them from home they should definitely pay you. You can still work for a Swiss company and not live in Switzerland. Maybe they would have difficulty paying your deductions as you aren't currently resident, but then they could just pay you your July pay in August (or whenever you are back).
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Old 22.07.2015, 17:39
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Re: Have a contract, but don't have the right to be paid?

Dear Island Monkey,

Many thanks for your reply. This is what I thought too, but then why would a reputable institution insist on this point? Maybe my contract type is beholden to the fact that I have a permit? I could not find any language in my contract stating this...
I wonder if there are any legal documents that exist which stipulate my right to compensation, regardless of my permit status?
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Old 04.08.2015, 18:50
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Re: Have a contract, but don't have the right to be paid?

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Dear Island Monkey,

Many thanks for your reply. This is what I thought too, but then why would a reputable institution insist on this point? Maybe my contract type is beholden to the fact that I have a permit? I could not find any language in my contract stating this...
I wonder if there are any legal documents that exist which stipulate my right to compensation, regardless of my permit status?
It is settled law virtually everywhere that work is performed at the place you are located and if it's legal there it's legal, everywhere. Tax and Totalization treaty issues can await the facts (i.e. Foreign Earned Income Exclusion, FICA/SET exemption). If the contract allows remote working then you need to be paid.

On the other hand it pays to be tactful.

Many of the cases I have seen relate to US state taxation for someone working from home in another state and visiting the office only rarely, NYS is particularly exorbitant. But that's the least of your worries at this point.
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Old 04.08.2015, 19:12
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Re: Have a contract, but don't have the right to be paid?

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Hi all,

I thought that the many experts in this forum might be able to give some advice on my situation. I am an American, employed at a Swiss educational institution. I renew my B permit on a yearly basis. This year I am switching from positions in the institution, requiring a completely new contract. My old employee contract ended the 31st of June, the new one to begin 1st of July.

Due to a major lapse in judgement on the part of HR, the application to renew my permit was not submitted in time for July, however the company already generated a contract which was signed by all appropriate parties and myself, stating that my contract "starts retroactively on the 1st July, 2015 until July 1st 2017". Here is the issue: my company states that because I do not have the right to live and work in switzerland (as I do not have a visa), I therefore will not be paid for the month of July. I am currently back home in the US, waiting (and working, as per my contract). Is it true that I do not have the right to be paid for this month, even though I was 1. assured that I would be and 2. I have a contract of employment stipulating this? Can one be contracted by a Swiss company, without a work permit to work there but live outside Switzerland and still receive salary? Any information anyone may have on my rights would be greatly appreciated.

With hearty thanks
I think that is correct. Your contract is not valid without a permit. They cannot employ you unless you have a permit.
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Old 04.08.2015, 20:24
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Re: Have a contract, but don't have the right to be paid?

If you expect to return to Switzerland once the contract is approved then really you shouldn't be doing work for the company. I think your company is trying it on, expecting you to work for no payment. If you're going to be coming back to Switzerland then technically you can't work until your new permit has been approved - which it hasn't. Stop work now until you get a yes or no on the permit issue. There should be a clause in the contract stating that it's "subject to permit approval".

If however this is a remote working contract, i.e. you're not planning on returning to Switzerland, then you should be paid.
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Old 05.08.2015, 09:51
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Re: Have a contract, but don't have the right to be paid?

Swiss law says that:
Employee has to provide his services, as agreed upon in the contract and additional conditions or additional agreement (if any), at the employers discretion, provided of course the whole thing is legal. Essentially, the employee has to obey employer's orders.

OP indeed provides his services in a legal fashion as s/he's US citizen (or has some kind of permit, green card or whatever) and therefor is legally allowed to work in the US. Where his "products" were to be used (e.g. he prepared some documents to be used in the swiss school lessons) can be none of his concern as he has no say on that at all.

Whether employer was allowed to use this kind of constellation, if employer objected that (not implying they do, but they may going forward), can not be any of the employees concern, perhaps with the exception of it being blatantly obvious.

I see no reason why OP should assume for that constellation to be illegal, hence I see no grounds for the employer to not pay. You provided your sevices and have earned your pay.
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Old 06.08.2015, 01:32
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Re: Have a contract, but don't have the right to be paid?

We had this case at my company, with a colleague who had a B permit as a student and was employed with a contract here. B permits usually depend on the employer and you may not change the job without asking all over again for the permit. But if you worked here before, with the B permit you usually have the possibility to stay in the country or ask for a (small) prolongation of the permit even without being employed.
Anyway, the company asked for the permit for my colleague actually after she started to work - also a HR mistake - but finnaly she received her permit with valability backwards to the date she started working. So there is a chance that you get your permit "in time".
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Old 06.08.2015, 10:56
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Re: Have a contract, but don't have the right to be paid?

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We had this case at my company, with a colleague who had a B permit as a student and was employed with a contract here. B permits usually depend on the employer and you may not change the job without asking all over again for the permit. But if you worked here before, with the B permit you usually have the possibility to stay in the country or ask for a (small) prolongation of the permit even without being employed.
Anyway, the company asked for the permit for my colleague actually after she started to work - also a HR mistake - but finnaly she received her permit with valability backwards to the date she started working. So there is a chance that you get your permit "in time".
You are mixing up things. There is a huge difference in the handling of permits for EU and for non EU citizens. As non EU you cannot just hang on without a permit, unless you have a correct tourist Visa.
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Old 06.08.2015, 11:25
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Re: Have a contract, but don't have the right to be paid?

Also don't confuse the permit with the contract.

The permit says whether you have the right to work (and / or reside) physically in Switzerland.

The contract with the company states the terms of your employment and payment.

If the contract states the work is to be performed at a location in Switzerland, but you don't have the necessary permit, then you can't fulfil the contract (legally). The link is your inability to deliver, not directly between the contract and a permit.

If the contract doesn't state the work is to be done in Switzerland, it could be done elsewhere and Swiss permits are not relevant if e.g. you're in the US.

In the latter case a Swiss company may well be in a mess around paying tax in the correct location, legality of actually employing someone in another jurisdiction etc, but if they let you work from there then that is their problem. Like most countries, letting you work is an implied contract, they can't a month later say they won't pay you.
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Old 06.08.2015, 11:36
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Re: Have a contract, but don't have the right to be paid?

Well, let's be honest:

a) the problem is not the payment but the fact that you worked without a permit which is illegal.
b) they cannot legally pay you for work you did during that time. You cannot pay tax for illegal income, social insurances and so on...
c) this is really basic and a major f.ck up at your HRs side.

If I were you would I suggest your boss and HR to pay you a bonus this year for your exceptional work... which happens to be one months salary. If not you'd want one month of paid leave in return for your free work. If they don't agree to it raise this issue to the highest level management of your institute.
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Old 19.08.2015, 17:34
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Re: Have a contract, but don't have the right to be paid?

Dear all,

Many, many thanks for your well-thought out and supportive/informative replies. I am still waiting on the visa confirmation, and my employer has yet-again informed me that they don't plan on paying me because no visa is in-even though it has been applied for.

I do not have a choice but to continue working as I did the entire previous months, as the project I am working on is my doctorate, and I am on a time crunch with the delivery deadlines (I am performing the work (via my institute) for an international organization, and the work cannot wait).

I have been advised to not have a full-on conversation with my employer until the visa has been received and all is in order. I will seek legal counsel in the meantime, and will update this thread when I know more.

Again, with many thanks.
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Old 19.08.2015, 18:27
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Re: Have a contract, but don't have the right to be paid?

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I have been advised to not have a full-on conversation with my employer until the visa has been received and all is in order. I will seek legal counsel in the meantime, and will update this thread when I know more.

Again, with many thanks.
I suspect your wasting your money, to be completely legal you will loose a year of your life, you don't wish to do that so are working in any case. You seem to want your cake & eat it, in CH that won't wash.
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Old 19.08.2015, 19:37
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Re: Have a contract, but don't have the right to be paid?

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I have been advised to not have a full-on conversation with my employer until the visa has been received and all is in order.
I'd add "and received one payment" - then there can be no possible excuses from their side.

However, knowing how HR and payroll typically work, getting real cash is likely to be a bureaucratic nightmare; goodwill like time-off-in-lieu is probably more at the discretion of the manager (/ not documented).
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