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MigrationOnline.czE-library › Summary of a public debate: Illegal employment of foreign workers

Summary of a public debate: Illegal employment of foreign workers

On June 6, 2013 in the Training institute of Charita ČR, The Association for Integration and Migration in partnership with the Organization for Aid to Refugees and Multicultural Center Prague organized a public debate on the following topic: Illegal employment of foreign workers: Sanctions and evidence. In the debate, representatives of the authorities and non-governmental non-profit sector tried to find answers to a number of questions regarding sanctioning illegal employment in the Czech Republic and in Germany. Special attention was devoted to the (non)payment of wages and to the effects of the transposition of the so-called Sanctions Directive on sanctioning employers and foreign workers without permission to stay.

In the first part of the debate, the invited panelists had the floor, in the second part, there was room for discussion.

Milena Křivánková Beranová of the Service directorate of the Alien Police inspectorate presented the current legal sanctions for foreign workers who are found working without authorization. She also gave insight into the practice of controls conducted under the presence of the Alien Police inspectorate. The Alien Police inspectorate is entitled to enter establishments and to carry out monitoring on justified suspicion that there are foreigners residing in the establishment. When the Alien Police inspectorate staff hold the suspicion that unauthorized employment takes place, their aim is to ensure as much proof as possible – i.e. a description of what the situation looked like, what specifically did the person concerned do, whether any evidence in the form of written documents was secured, etc.

Although it does happen that illegal employment is detected, statistics show that the detection rate of illegal work carried out by foreigners is relatively low. In 2012, according to the Alien Police inspectorate statistics, 2,066 administrative expulsions were granted, out of which only 119 foreigners were expulsed for illegal employment, and only 10 cases were found to exercise illegal employment while concurrently residing in the country without the required authorizations. In 2013, for the period from January to May, 702 decisions on administrative expulsion were made, 163 out of these on the grounds of illegal employment. Only in two cases the expulsion was granted on the basis of both illegal employment and unauthorized stay.

Radek Kapoun of the Regional labor inspectorate for the Central Bohemian Region further clarified that labor inspectorates overtook the responsibility for monitoring illegal employment from labor offices at the beginning of 2012. At the moment (2013), monitoring illegal employment makes up the work of approximately half the workforce labor inspectorates have at their disposal. At the same time, labor inspectorates carry out controls according to an annual plan, and where appropriate they react in response to specific initiatives. If it is known beforehand that there are foreigners employed on the controlled site, monitoring is carried out in co-operation with the customs administration or the Alien Police inspectorate. In exceptional cases, even cooperation with the Unit for Combating Organized Crime takes place. Lately, the problem of carrying out other types of work than those for which the foreigner has authorization (which is especially the case with the Vietnamese) could be seen as particularly prominent in this field.

The penalties granted for illegal employment range from 250,000 CZK to 10,000,000 CZK for employers, the first figure representing the minimum fine. Therefore, in the case of imposing fines for illegal employment, the inspectors need not (compared to other fines) investigate whether the fine imposed would result in the employer going bankrupt. The penalty to be paid by the employee is limited to a maximum amount of 100,000 CZK, yet it is imposed at this level only rarely – in particular, in such cases when the illegally employed person concurrently receives welfare benefits.

Martina Vácová from the Ministry of Labor and Social Affairs (MPSV) provided information on the activities of the MPSV in the area of combating illegal employment; in particular, she gave insight into regular transmission of information at the meetings of the interdepartmental authority for combating illegal employment. The Ministry of Labor and Social Affairs would like to employ a more preventive approach than has been the case up to now. Estonia was named as a country from which the Czech Republic could draw inspiration in this respect.

A somewhat different view on combating illegal employment was presented by Dr. Barbara Weiser, a lawyer of the German Caritas in Osnabrück. In Germany, illegal employment may be regarded both as an administrative offense as well as a criminal offense [1]. As required by the Sanctions Directive, illegal employment is classified as a criminal offense in particular in such cases where the employees worked in exploitative working conditions, where trafficking in human beings was involved, where more than five people were employed, where illegal employment occurred repeatedly or where minors were employed. In addition to that, employers who make use of illegal work usually tend to be excluded from various procurements and tenders; their authorization to operate in the field concerned may be suspended, etc. In those cases in which illegal employment is seen merely as a minor breach of the law, the employer receives a substantial fine. In cases of repeated unauthorised performance of work, employees may lose their residence permit.

Norbert Grehl-Schmitt, also from the German Caritas in Osnabrück, added that in case of illegal employment, labor exploitation always takes place (of course, exploitation can occur in case of legal work too). On the issue of violations of labor rights, he holds the opinion that this problem area should be treated with the awareness that it is a sort of a continuum: on one hand, you encounter trafficking in human beings, in the center of the continuum there is labor exploitation; and on the other pole of the scale there is precarious work. In their work in Caritas in Osnabrück, the staff, among other things, deal with the question of where to position the detected cases of labor exploitation on this imaginary scale, how to prevent labor exploitation and how to make use of the potential of the people who live in Germany. 

The last panelist, Magda Faltová, director of the NGO Association for Integration and Migration, explained that the main problem which the lawyers in her organization face in relation to labor law violations is the recovery of outstanding wages for foreigners. Foreigners have a weak position in proceedings of any type, and, in contrast to the majority of the population, they cannot rely on the protection of a labor inspectorate or any other institution. Another problem is linked to the access to information in the proceedings – when the lawyers of a non-governmental organization submit a complaint that their client is entitled to outstanding wages, they do not become parties to the proceedings and cannot obtain information on the ongoing cases.

As a major problem in the field of illegal work, Magda Faltová perceives the combined controls of illegal employment, i.e. the fact that labor inspectorates carry out their checks in particular together with the Alien Police inspectorate. In a situation where residence and work permits are closely interconnected, it can be hardly expected that the migrants who are dependent on employment also for residential reasons would turn to labor inspectorates with issues concerning their employment. Apart from the earnings they need, their primary interest is not jeopardizing their residence status. Already by reporting a problem they risk losing their job, not to mention that quite often they do not know (and sometimes they even cannot know) whether their employment is carried out fully in accordance with the relevant legislation. Given the obligation of labor inspectors to inform the Alien Police inspectorate of any problems relating to residency they encounter, migrants without either a residency or work permit are in practice excluded from defending their labor rights from the start, despite being the most vulnerable to labor exploitation. Moreover, even in such cases where the labor inspectorate launches an investigation, it is usually very difficult to merely enter into contact with the employer and subsequently reach him or her in person. From the field findings, it also emerges that often it is the formal obligations of the employer whose compliance is inspected, although these do not always coincide with the pursued practice.

Magda Faltová also highlighted the fact that the implementation of the so-called Sanctions Directive has not brought any significant improvement concerning the possibility that those migrants who are expelled on the basis of unauthorized employment do recover their outstanding wages. On the other hand, the implementation of this Directive increased the employers' fear of detection and receiving a fine for illegal employment. As a result of that, the payment of outstanding wages following phone reminders is more frequent now than had been the case before the implementation of the Directive.

The subsequent discussion revolved around the implementation of the Sanctions Directive, the whole setting of the system and the procedure of labor controls and forced crime detection. Barbara Weiser commented on this issue that in Germany, the so-called Sanctions Directive has been implemented to a far greater extent than in the Czech Republic, however, despite that, it remains difficult to recover outstanding wages; she added that the transposition of the Directive was not carried out in such a way which the organizations helping migrants would regard as truly effective. People employed without appropriate authorization shall have legal entitlement to outstanding wages, yet of course they must demonstrate (e.g. by testimony of other workers) that their employment relationship lasted for at least three months and that the place of work was agreed upon. Her colleague Norbert Grehl-Schmitt followed on her remark and added that in Germany, the efficiency of financial controls in the field of illegal work is many times higher than actions combating illegal work: these are conducted by the police, which in this area mainly focus on detecting organized crime.

One of the main topics covered was whether the Czech Republic, when implementing the Sanctions Directive, took into account Article 26 of the Directive, which states that regarding the enforcement of the Directive, countries should establish "effective complaint mechanisms by which relevant third-country nationals may lodge complaints directly or through designated third parties." The representatives of civil society raised the question of whether and how the Czech Republic fulfills this commitment. According to the Alien Police inspectorate and MPSV representatives, this obligation is fulfilled through an information leaflet translated into fourteen languages, which is sometimes presented to foreigners during the proceedings of administrative expulsion (see annex to this article).

It must be added that even though the atmosphere of the public debate was not confrontational, a range of issues transpired which are pressing, yet under current practice very often out of reach of justice and without any real solution (e.g. the responsibility of main contractor towards subcontracting workers, proof of employment). Similarly, a significant difference could be noted between the positions of the government representatives and the NGO staff when evaluating the tools and practice in the area of the efficient enforcement of foreigners' labor rights.

Video footage (in Czech) can be seen here

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The text was written under the project called "Foreign workers in the labour market," which was carried out by the Association for Integration and Migration, in cooperation with the Organization for Aid to Refugees and the Multicultural Center Prague. International project partners are Caritasverband für die Diezöse Osnabrück from Germany and the Anti-Slavery International from Great Britain.


[1] Under Section 342 of the Criminal Code illegal employment may be classified as criminal offense even in the Czech Republic (editorial remark). 

Marie Jelínková

 

PhDr. Marie Jelínková Ph.D., works as a researcher at the Center for Social and Economic Strategies of the Faculty of Social Sciences in Prague and externally lectures on international migration at the same faculty. In her research she focuses on the issues of migration and integration of people with migration background, she has focused in detail on the situation of persons without a residence permit, access of migrants to health care or labor exploitation. She defended her dissertation thesis on the issue of Mongol migration to the Czech Republic. She studied at FSV UK and at the University of Queensland. In the past, she has also worked as editor of the migraceonline.cz portal.

 

Eva Čech Valentová


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