New obligations in case of working with non-EU citizens and joint liability and criminal penalties if (sub)contractors work with illegal employees

With an Act of 11 February 2013, the European Penalty Directive was partly transposed into Belgian law. This act enters into force today, 4 March 2013.

This act introduces a number of additional obligations for employers of non-EU citizens. As of 4 March 2013, those employers have to:

• examine if the worker has a valid work permit and this before he/she starts work;
• keep a copy of the residence permit available (or the information which it contains) for the social inspection services;
• declare the start and end date of the employment in accordance with the applicable legislation.

Employers who do not comply with these obligations, or who know that the worker's residence permit is forged, can, as of today, be sanctioned with a level 4 penalty (i.e. the highest criminal level).

The act also introduces a complex system of joint liability for principals and contractors for remuneration debts in the event their (sub)contractor employs illegal workers. Besides that, (sub)contractors also now risk incurring a penalty of level 4 if their direct contractor employs illegal workers, unless they are in possession of a written statement of the subcontractor that he will not employ illegal employees and they are not aware of the illegal employment. They will also be sanctioned with a level 4 penalty if their indirect (sub)contractor employs illegal workers if they are aware of this. The same applies to the principal if his contractor or subcontractor employs illegal workers and he is aware of this. This system applies in all sectors of industry and also enters into force on 4 March 2013.

> Action points:

"¢ Employers have to keep a copy of the work permit of all non-EU citizens working for them.

"¢ Principals and contractors have to insert a clause in their (sub)contractor agreements with regard to the employment of illegal workers.