Increasing attention to compliance with immigration regulations requires a pro-active approach from employers in order to reduce exposure.
The Dutch Ministry of Social Affairs and Employment closely monitors compliance with the Dutch Foreign Nationals Employment Act. In case of a violation, the company may receive a fine of up to 12.000 euro per foreign employee. In addition, administrative penalties and a separate enforcement systematic of the Immigration Services (IND) exist.
All foreign employees who are not EU nationals should have a work permit to perform work in the Netherlands, save for some exceptions. For the business visa exceptions, please click here. Croatian nationals are EU citizens, but they do still need a work permit to perform work in the Netherlands.
The Foreign Nationals Employment Act uses a broad definition of the term employer. An employer-employee relationship is strictly not required to fulfill the definition. Even without the existence of an employment contract and without actual authority over the employee, you may be seen as the foreign national’s employer. The relevant distinction in this regard is if the foreign national actually perform work or service to you or on your behalf.
Even if you work with subcontractors, you may be considered the employer of the employees of the subcontractor in terms of the Dutch Foreign Nationals Employment Act.
To mitigate exposure, we advise you to use protocols that stipulate how the identification of new hires and any other personnel on your premises should take place. It is your responsibility as an employer to carefully check the passports and work permits of all employees to make sure that they are allowed to perform work for you. Moreover, you should keep these documents in your administration for a period of five years after the employment has ended.
We also advise you to consider adding indemnification clauses with respect to identification duties from the Aliens Employment Act in commercial contracts with suppliers or subcontractors, service providers and any other parties that bring personnel to your premises. Such clauses should state that these parties will comply with the Dutch Foreign Nationals Employment Act and that they will indemnify you for any damages in the event of a violation.
We are happy to assist you by providing tailor-made protocols and template agreements. In the unfortunate event that enforcement authorities ascertain violations nevertheless, our immigration experts can litigate on your behalf.