The risk of having an employee without a licence
The risk of having an employee without a licence
"One of my colleagues hired a cleaning lady for whom he paid AVS contributions and took out the necessary insurance. However, a check revealed that this person did not have a residence or work permit for Switzerland. What does he risk?
Olivier, Geneva
Article 117 of the Federal Law on Foreign Nationals (LEtr) is clear when it comes to the criminal penalties that your colleague risks: anyone who intentionally employs a foreigner who is not authorised to work in Switzerland or uses the services of a person in Switzerland who does not have the required authorisation to provide cross-border services shall be punished by a fine that may be accompanied by a custodial sentence of up to one year. This penalty may be increased to three years in serious cases. If the offender acts negligently, he or she is liable only to a fine of up to CHF 20,000! In Geneva, cases brought to the attention of the Office cantonal de l'inspection des relations du travail (OCIRT) are investigated and reported to the public prosecutor's office.
In addition, from an administrative point of view, article 122 of the Foreign Nationals Act stipulates that the uncovered costs incurred by the public authorities for the subsistence of a foreign worker who has not been authorised to engage in gainful employment, any accidents or illnesses or his or her return journey are to be borne by the employer who hired him or her or intended to hire him or her.
If an employer repeatedly breaches the law, the competent authority may reject all or part of his applications to admit foreign workers, unless they have a right to authorisation (for example, in the case of European nationals or people married to a Swiss spouse).
The Foreign Labour Office of the Migration Service is responsible for issuing such administrative measures, which may take the form of a warning (summons) if the offence is a first or minor offence, or an actual sanction prohibiting the offending employer from employing certain categories of foreign nationals for a certain period of time.
