2019: Looking Back on a Year of Increased Government Rule Enforcement
December 19, 2019
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Audits for employers of temporary workers. In 2019, there was a continued stream of inspections by the Employment and Social Development Canada (ESDC) of employers utilizing the Temporary Foreign Worker (TFW) program following a government report recommending increased enforcement by the ESDC. The ESDC continued to use a predictive model developed in 2017 that focuses on industries with a higher risk of noncompliance, which recently has included restaurant/food service and farming.
What’s next? Unannounced inspections are expected to continue in 2020 and beyond, supported by CAD 196 million in government funds allocated to support inspection efforts. Areas of inspection are likely to include adequacy of employee training, hiring of unemployed Canadians and adequacy of efforts to appeal to underrepresented groups for jobs.
Belgium - ongoing unannounced inspection spike. The labor inspectorate is conducting an increasing number of unannounced immigration, labor and social security compliance audits across all industries in Belgium, whereas previously they focused on high-risk industries such as construction, and high-risk groups such as posted workers.
What’s next? Fragomen expects such checks to continue in the upcoming months. Employers are advised to ensure that personnel files are up to date and reporting obligations are fulfilled.
Germany - expanded employer compliance checks forthcoming. Once enacted (expected mid-2020), a new law will expand the Federal Employment Agency’s review when assessing work permit applications – it will not only assess the specific job position, but will oversee overall compliance with tax and social security laws and the employer’s solvency. The law will also implement a new requirement for employers to notify immigration authorities when they are terminating a foreign national’s employment.
What’s next? Employers should adopt protocols to be prepared to report the additional information.
France - new law with higher penalties and enforcement for posted worker notifications
Shorter deadline for notifications: A new law went into effect in July 2019 that sets a shorter, 15-day deadline for employers to produce documentation required by the labor authorities; adds more required information to the online posted worker notification form, and implements penalties such as temporary suspension of services or closure of worksites for employers that do not comply with posted worker rules, a significant expansion of authority from the previous situation.
Increased enforcement for equal pay: A new online posted worker notification form also effective in July requires employers to ensure compliance with gender salary equality rules and requirements to pay seconded and French employees equal salaries, where previously, the requirements concerning equal pay were not enforced.
Expanded document-sharing capacity: The July law also allows labor inspectorate officers and third parties to share documents related to seconded employees as part of an investigation for illegal work. The law allows closure of the company or any site where the company works if it identifies illegal workers on the property. Lastly, the law allows labour inspectorate officers to issue injunctions for and temporarily suspend services of employers that fail to pay administrative fines for noncompliance with posted worker rules.
What’s next? The growth of posted workers in Europe is likely to bring more complex laws and policies regarding government notifications and higher penalties for noncompliance with such rules.
Spain - re-review of renewal applications. In July 2019, after realizing that many Entrepreneur’s Act residence permit applications were automatically granted even where they did not meet the requirements of the category during a renewal application, authorities have been reviewing initial permits which were automatically granted based on this practice.
What’s next? Fragomen expects Spanish authorities to continue scrutinizing applications for highly skilled workers under the Entrepreneur’s Act in light of increasingly restrictive requirements.
Focus on promoting local workers. Generally, there has recently been a focus in this region of promoting the local workforce over foreign workers. Countries where local unemployment is high are seeing higher enforcement and a focus on compliance with more restrictive rules. Examples include:
Jordan: As of September 2019, certain highly skilled foreign nationals must apply for a new work authorization route that is subject to a higher government fee and other more restrictive criteria. Key professions on the list include engineers, medical professionals, telecommunication and information-technology professionals and technical and specialized jobs in the banking and financial sector, among others.
Egypt: An extended state of emergency caused increased scrutiny of foreign nationals seeking to live and work in the country in 2019.
Kuwait, Bahrain: New and higher fees were implemented for employers who are noncompliant with mandatory local worker ratios.
What’s next? Middle Eastern countries experiencing economic downturns or sustained economic decline, such as Saudi Arabia, are likely to continue to implement protections for foreign workers and stricter compliance-related rules for employers hiring foreign workers, and foreign workers themselves. Since employment laws are often intertwined with immigration laws in this region, labor immigration changes are likely to accompany employment law changes.
Audits and tracking systems on the rise. Immigration audits steadily increased in the region after a 2018 spike in government inspections. Authorities continued to target oil and gas businesses, an already heavily regulated industry that requires specific accreditations and document maintenance for foreign workers and their employers. The government of Kenya instituted a new identification number system which, while granting foreign nationals access to national public services, displays the government’s growing tracking activities as it collects biometric information and residence addresses.
What’s next? With the expected steady influx of low-skilled immigrants, governments will likely continue to closely scrutinize work permit applications. The focus on compliance with immigration laws may help draw foreign investment and skilled immigrants because it signals a desire for sustainable business environments with compliant and ethical employers and employees. African governments will likely continue to develop programs to track foreign nationals in order to project a strict immigration system to entrants.
Philippines – increased scrutiny and focus on compliance. The entry of more than 100,000 Chinese workers under Special Work Permits (SWP) in June 2019 exposed certain abuses of the SWP program and resulted in a requirement that foreign workers obtain a Taxpayer Identification Number before being authorized to work to ensure proper payment of taxes. Following this rule, in July 2019, the government issued a set of guidelines that among other changes, clarifies the types of foreign visitors who require a short-term Special Work Permit (SWP) and limits the validity of SWPs and Provisional Work Permits to six months without possibility of renewal. This pattern of increased scrutiny and clarified lists shows the Philippine government’s focus on protecting local workers. In December, over 400 new labor inspectors were deployed to inspect establishments employing foreign nationals to verify foreign workers’ status and the legitimacy of the company.
What’s next? Enforcement efforts and an increased focus on compliance with the new guidelines is expected to remain steady.
Vietnam – tracking of foreign workers increased. In March 2019, the government reimplemented the requirement for employers to cancel Work Permits if a foreign national’s assignment is terminated or ends earlier than the Work Permit expiration date. This policy demonstrates the trend of the Vietnamese government tracking foreign nationals and their activities in the country more strictly.
What's next? As the number of foreign workers in Vietnam continues to increase, the government will likely continue to expand its tracking mechanisms to prevent potential misuse of the Work Permit.
To request a copy of Fragomen’s 2019 Worldwide Immigration Trends Report, which includes additional information on government compliance and enforcement efforts around the world and other important immigration topics and projections, click here.
