A Highly Relevant Issue
The recurring, widely publicized cases of serious workplace accidents, which increasingly involve foreign nationals, often undocumented, both in terms of their legal presence in the country and the labor regulations concerning discipline and safety, alongside growing attention to mass migration phenomena, have led to a significant tightening of inspections and sanctions against the hiring of non-EU workers who are non-compliant with the existing laws.
In fact, the work of non-EU citizens without a regular residence permit is often accompanied by severe and sometimes fundamental violations of safety, hygiene, labor discipline, and insurance regulations. As a result, the authorities responsible for surveillance and control have recently increased the frequency and intensity of inspections in these areas.
This has also been driven by a legal framework that, from one perspective, has toughened existing sanctions and, from another, has introduced new sanctionable offenses, often of a criminal nature, such as the crime of exploitation (caporalato) and the reintroduction of criminal penalties for violations of regulations regarding the posting or outsourcing of personnel.
The judiciary has not remained indifferent to this issue, and with the increasing number of cases brought before the courts, there has been a noticeable increase in judicial decisions on the subject, along with a clear shift towards more stringent interpretations aimed at stricter penalties.
In this context, it seems essential to remind employers of the need for rigorous corporate compliance, ensuring full adherence to both immigration laws concerning the entry and stay of non-EU citizens in Italy, as well as those concerning labor safety, hygiene, and discipline.
The Recent Ruling of the Court of Cassation
With its recent decision No. 37866 of October 15, 2024, the First Criminal Section of the Court of Cassation revisited the issue of employing non-EU workers without a residence permit.
The case reviewed by the Court concerned an individual who, in the first instance, was convicted as an employer under Article 22 of the Consolidated Immigration Act for hiring a Moldovan national without a residence permit, who was intended to care for his senior parents.
On appeal, the decision was overturned, as the Court had ruled that the title of employer could only be attributed to the senior father, who also paid the salary. However, the prosecution later filed an appeal to the Court of Cassation against the acquittal.
In its final ruling, the Court annulled the decision with a referral, affirming that an “employer” under Article 22, paragraph 12 of Legislative Decree No. 286/1998 includes any individual who hires or recruits foreign workers without a residence permit, even if only for their own benefit. In this case, the individual had actively contacted and hired the caregiver, intending to regularize her status later, which never happened.
A Broad Definition of Employer for Criminal Provisions
The Court’s decision, which refers to a previous ruling in agreement, establishes that while Article 22, paragraph 6, refers to a “specific offense” that can only be committed by an employer, the term “employer” should not be understood in a formal sense. It applies whenever the work performed by a non-EU employee is done for the benefit of and under the direction of the agent (in this case, the son).
According to established case law from the Court of Cassation:
“The employer who hires foreign workers without a residence permit for themselves or recruits them to work for others is liable under Article 22, paragraph 12, of Legislative Decree No. 286/1998″ (Section 1, No. 12686 of February 22, 2023, Paglianiti, Rv. 284352; Section 1, No. 25615 of May 18, 2011, Fragasso, Rv. 250687).
Thus, we are witnessing the consolidation of a broad definition of “employer,” which includes not only a private citizen hiring a caregiver for their parents but also anyone hiring non-EU workers for their own or others’ benefit or overseeing and controlling their employment.
The Necessity for Strict Compliance with Immigration and Employment Laws
This underscores the urgent need for companies to adhere strictly to immigration laws when hiring non-EU workers for employment purposes.
As is well known, Article 22, paragraph 12 of Legislative Decree 286/1998 imposes penalties on:
“The employer who hires foreign workers without the residence permit required by this article or whose permit has expired and whose renewal has not been requested within the legal deadlines, or who has had their permit revoked or annulled.”
For example, a company that obtains a business visa for a foreign individual, only to have that individual employed as a regular worker at an Italian company, might face charges under Article 22 of the Immigration Act, not only against the company where the work is performed but also the one that obtained the business visa.
The Need for Corporate Compliance to Prevent Criminal Risks
Given the increasingly frequent and stringent inspections, the introduction of new criminal offenses, and tougher sanctions along with a stricter judicial interpretation, it is essential for companies to adopt corporate compliance regarding the employment of non-EU workers, ensuring adherence to the complex and detailed regulations in force.
This is necessary to minimize or eliminate criminal risks for both the company’s senior management and the company itself, as per Law No. 231/2001.
It is worth recalling that, according to a recent ruling by the Court of Cassation (November 6, 2024, No. 40682), in the case of delegation of management duties, when there is a total absence of planning and systematic violations of the law, not only the delegated person but all members of the company’s Board of Directors may be held accountable for violations of criminal law.
Therefore, to protect against criminal liability, it is essential for every member of the Board of Directors to ensure the adoption of adequate corporate compliance, particularly concerning the entry and employment of foreign workers in the country.
Avv. Enrico Fontana
Studio Legale Fontana, Modena, Italy