Employing a foreign worker without a permit
The employment of a foreign worker without a permit is not a new phenomenon in Israel. For the employer, the main objective for illegal employment is, undoubtedly the attempt to reduce his expenses. But recently, the Israeli Government has strengthened the penal set of regulation and the penalties incurred on employers. In this article, advocate Michael Decker, Israeli lawyer and partner at the law firm Cohen, Decker, Pex, Brosh, law office in Jerusalem and Petah Tikva, will explain the Israeli law regarding employment of foreign worker without a permit.
Illegal employment of foreign workers in Israel
The reason for a restrictive policy on illegal employment is double. On the first hand, the preservation of foreign workers rights by protecting them from exploitation and abuse by local Israeli employers. On the second hand, enforcing punishment on employers of foreign workers will encourage them to hire Israeli citizens and will act as a deterrent. The increasing enforcement of criminal proceedings against employers of foreign workers without a permit in Israel is apparent by the amount of fines imposed on them. Lately, it reached 1 million NIS per month.
The problem of employment of foreign workers without a permit affects all sections of the Israeli society. In 2011, Ehud Barak’s wife Nili Priell has been indicted with criminal charges for employing an illegal worker as a cleaning lady. The former Prime Minister’s wife admitted having employed Virginia Navaro to clean her house for seven months, even though the employee’s visa had expired. As often happens in those cases, Priell did not sign any employment contract with the housekeeper and failed arranging medical insurance. Israeli courts take a harsh view of such offenses, the result of which in most cases is a criminal conviction and payment of a fine.
Who is considered to be the employer of the foreign worker?
Last year, there were approximately 96,500 illegal foreign workers in Israel, of whom the vast majority are working as housekeepers or private caregivers for local families. In such cases, the criminal conviction is laid against both members of the couple.
What laws are breached when employing a worker illegally in Israel?
It is important to note that multiples laws are broken by employment of a foreign worker in Israel without a permit. First, the offense of the prohibition of employment of foreign worker without a permit; Second, the obligation to arrange medical insurance for one’s employee (Foreign Workers Law – 5761 – 1991 ). Also, the criminal charges are usually placed both on the wife and the husband in case the employment was done at a local Israeli home.
The prohibition of employing a foreign worker without a work permit
The prohibition of employing a foreign worker without a permit is established in the Foreign Workers Law – 5761 – 1991, under the section 2 (a) (1). This is a penal offense, taken very seriously by the courts. According to Amendment 15 to the Foreign Workers Law, the penalty range lies between NIS 10,000 and NIS 58,400. Most of the time, the employment of a foreign worker without a permit is followed by the offense of the Foreign Workers Law’s section 2 (b) (3). It provides the obligation for an Israeli employer to arrange for medical insurance for his/her employee.The combination of both offenses complicates the situation for the convicted, and makes it harder to prove his innocence. When representing employers of a foreign worker without a permit, it is not easy to receive an acquittal or dismal of the conviction.
What is the likely punishment when employing a foreign worker without a permit?
The sentences imposed on those convicted for the offense of employment of a foreign worker without a permit are mostly fines. The examination of the different cases shows that the range of the actual fine was generally between NIS 10,000 and NIS 20,000. On the violation of the obligation to arrange medical insurance for one’s employee, fines of between NIS 5,000 and NIS 6,000 are widely imposed.
Moreover, the court makes a case-by-case study that takes into account the specifics of each situation. For instance, the court has taken under consideration the defendant’s immediate confession, even though the illegal employment lasted for several years (State of Israel v. Nurit Buchowitz). Under certain circumstances, the relevant court will consider the existence of extenuating circumstances to show leniency when imposing the sentence, such as the defendant’s age, the harm to his family, his positive characteristics and contribution to the community, etc.
What is the responsibility of the spouse in the case of employing a foreign worker without a permit?
As said before, most of illegal foreign workers are working as housekeepers or caregivers within a local home. In such cases, a new issue emerges: which member of the couple is liable for the employment of the foreign worker without a permit? Most of the time, the motion to indict includes both spouses and the two of them are convicted by the court. To determine who should be convicted, the court is basing its logic on the analysis of the psychological or mental element. The requirement for conviction is the awareness of the crime being committed, which is still maintained if the spouse is “willfully ignorant” of the crime. The court will examine if the spouse has had enough elements to be aware of the crime or in the deliberate ignorance of it. In some exceptional cases, the couple can provide evidence that the spouse was not involved in the household affairs to get acquittal or dismal of the conviction. The court has also shown mercy when it was proved that the conviction of one couple’s members would harm his reputation or his ability to get through some administrative process.
If you are being convicted of illegally employing a foreign worker in Israel without a work permit, legal remedies exist. Please contact us for legal assistance or information regarding the crime of illegal employment of foreign worker without a permit.