Labour Inspection tightens illegal employment enforcement

The Labour Inspection’s enforcement regime will change as from January 1st, 2018. Where in the past the Labour Inspection issued a warning first, the Labour Inspection will now immediately issue an official report for violations of the Wet arbeid vreemdelingen BES (hereinafter Wav BES [BES Labour Law Foreigners]).

The Labour Inspection will strictly check that all employees have a valid ID on them, which they can present when required. Furthermore, a valid work permit should be present at the workplace of the foreign national, which can be presented to the inspector if requested. Non-local Dutch and American nationals who work here for a longer period of time, should have a so-called ‘Verklaring van rechtswege’ [declaration of admittance by law]. Also when you have employed a foreign national via a secondment agency or an employment agency, you should be able to present the requested documents.

As regards the hiring of foreign nationals from secondment agencies or an employment agency, the hiring party is also regarded as an employer under the Wav BES. This means that if the secondment agencies or the employment agency do not have a valid work permit, the hiring company is also in violation of the Wav BES. Both the hiring company and the lending company are regarded as an employer by the Wav BES and both will receive an official report. This ultimate liability also applies if one acts as a principal.

The new enforcement regime was realised in collaboration with the Public Prosecutor’s Office. The basic principle is that the Public Prosecutor’s Office will impose a fine of $3000.00 on the employer per violation. If other serious offences have been committed such as human trafficking or if the company commits another violation within two years, the Public Prosecutor’s Office can present the case to the court.

It is important to know that the majority of the companies do comply with the laws and regulations. There is nothing to fear if everything is in order. The more stringent enforcement policy is mainly intended to deal with companies which systematically violate the law and as a result enjoy a competitive advantage.

The Labour Inspection ensures the enforcement of the Wav BES, among others. The Wav BES and the underlying regulations provide for the deployment of foreign nationals. The objectives of the law are: (1) preventing that the local labour supply is pushed aside, (2) preventing distortion of competition between companies and (3) preventing the exploitation of foreign nationals. In May 2017 the rules regarding the deployment of foreign nationals were specified in more detail. The legality of the applications are now assessed more closely when granting work permits.

Please refer to the website for more information about the Wav BES under Social Affairs and Labour.

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