Regularisation: What to do if employer refuses to undersign contract.

Law 102 of 2009 enabled employers of illegal domestic workers and of undeclared workers to regularise their workers. 

Only those who had been working for their employers by 1st April 2009 could be regularized. Before submitting the application to regularize their workers, employers had to pay a lump sum amount of 500 Euros for each worker to be regularized. This was meant to cover social security contributions.

Applications were to be submitted online to the Ministry of Home Affairs from 1st to 30th September.

From 1st October 2009, the Immigrations Offices at the Prefecture (Sportelli Unico per l’Immigrazione) and the Provincial Police Headquarters (Questure) received all the applications which were submitted online. The Provincial Police Headquarters immediately embarked on and are still verifying if there are reasons that may block the issuing of the Permit of Stay to illegal domestic workers.

The following, even if they applied for regularisation, will never receive green light from the Provincial Police Headquarters: Those who have been expelled from Italy for security reasons, public order or terrorism, those who have been earmarked as non admissible to Italy, as well those who have been condemned, even if not definitely, for crimes requiring being caught red handed. Foreigners who in the past were expelled from Italy because they didn’t have the Permit of Stay or because their permits had expired will be regularised if they applied.

 
If the police officers don’t find anything that may block the foreigner from being issued the Permit of Stay, they clear the application.

Having received clearance from the Provincial Police Headquarters that there are no reasons to block the issuing of the Permit of Stay, the Immigrations Office at the Prefecture summons the employer and the worker to go and undersign the Residency contract (contratto di soggiorno).

According to Immigration Law, employers of illegal immigrants risk a prison sentence ranging from six months to three years, and a fine of 5,000 Euros fine for each worker. Apart from this, there is also a fine for the use of undeclared labour and failure to pay social security contributions. Illegal immigrant workers also risk being charged of committing the offence of illegal immigration and expulsion.

Recently the Ministry of Home Affairs issued Circular letter stressing that the criminal, civil and administrative sanctions foreseen by the law for undeclared work will only be condoned definitely if the application for regularisation of an illegal domestic worker is accepted.

For the procedure to be considered complete, the employer and the worker must undersign the Residency contract at the Immigrations Office at the Prefecture; the employer must notify INPS of the hiring of the worker; and the worker must submit application for the Permit of Stay.

Even if the worker and the employer have terminated the work relationship, the worker and the employer must necessarily report to the Immigrations Office at the Prefecture when summoned to formalise the end of work relationship by indicating the reasons for its end.

At the same time the two parties will undersign the Residency contract which covers the worker’s period of actual work. It is only by doing this that the criminal, civil and administrative sanctions foreseen by the law for undeclared work, and for hiring an illegal immigrant will be condoned.

The employer will have to pay the social security contributions to INPS for the period in which the foreigner worked for him.

All illegal domestic workers who follow this procedure will have the possibility of applying for the Permit of Stay for Job Search (attesa occupazione).

o   What happens if the employer refuses to report to the Immigrations Office?

If the employer gives up the application for regularization and fails to report when summoned to the Immigrations Office at the Prefecture, the application will be archived.

This will automatically lead to resumption of the previously suspended criminal, civil and administrative sanctions foreseen by the law for undeclared work, and for hiring an illegal immigrant. There are also administrative sanctions for tax evasion, for failure to pay social security contributions, etc.

It seems that the foreign worker in this case loses the possibility of applying for the Permit of Stay since all Circular letters from the Ministry of Home Affairs only say that the worker can only apply for the permit if the worker and the employer report to the Immigrations Office at the Prefecture to formalise the end of work relationship.

It is important to note that all workers who lose their jobs, including undeclared workers, have a right to be paid all the unpaid wages prior to the loss of the job. The worker therefore has a right to all the due pay, allowance for untaken paid holidays, the severance indemnity (trattamento di fine rapporto – “TFR”), etc. The worker can therefore ask the employer to pay all the above where applicable.

o   How can the worker defend himself?

If the worker and the employer have terminated the work relationship before they are summoned to the Immigrations Office at the Prefecture, the worker is advised to send a letter to the employer by registered mail with return receipt, asking him to report to the Immigrations Office at the Prefecture when summoned.

In case the worker is informed of the date and time of appointment, he should indicate such information in the letter. The worker should also inform the employer of the consequences he’ll face if he fails to report. In such a letter, the worker can also ask to be paid all the unpaid wages.

The worker should copy this letter to the competent Immigrations Office at the Prefecture, clearly asking them to also notify him (the worker) of the appointment. It is therefore important for the worker to indicate the new address.

If after all these attempts the employer decides not to report to the Immigrations Office at the Prefecture, the worker may take the case to court to claim all unpaid wages. This is a necessary step before going to the Provincial Police Headquarters to apply for the Permit of Stay for Job Search.