Typically, non-compliance with employment laws leads to administrative proceedings which may lead to the payment of fines. If such non-compliance is based on violation of rights that deserve protection under criminal law, it may also lead to this type of judicial proceedings.
Breaches of labor law do not entail a criminal breach or sanction unless such a breach or offense is specifically regulated by the National Criminal Code as a crime. In that case, criminal sanctions will be applied for the breach of criminal law and not for the breach of labor law.
REGULATIONS AMID COVID-19 PANDEMIC
Given the coronavirus disease 2019 (COVID-19) pandemic and recommendations from the World Health Organization, the national government has enacted several measures related to employment in order to avoid the spread of COVID-19 and mitigate its consequences. These measures have been continuously adapted to the epidemiological situation of the country, and applied differently in each province, taking into account the number of cases and health resources, among others. The following summarizes the measures currently in force:
- Double compensation
By means of Decree No. 34/19, the national government declared a public emergency in occupational matters for 180 days. As a result, in the event of an unjustified dismissal within this period, the worker shall be entitled to receive double the amount of mandatory severance. On June 10, 2020, Decree No. 528/20 extended this measure for another 180 days. By means of Decree 39/2021, this measure has been extended until December 2021. In addition, a cap of ARS500,000 has been established as applicable to the amount to be paid as double severance.
- Ban on dismissals
On March 31, 2020, the national government banned wrongful and economic (lack-of-work) dismissals for a 60-day period. In addition, employee suspensions based on force majeure reasons or lack-of-work, or reduction -of -work were banned for 60 days. This measure has been continuously extended over the past year and, most recently on January 22, 2021, it was extended for another 90 days, by means of Decree 39/2021. Any As a result, any dismissal or suspension violating this decree will be void.
- Restrictions on public circulation
Through Decree No. 1033/2020, the national government has reserved the use of public transport for essential services workers (eg, on-duty judiciary workers, personnel involved in public procurement, health workers, security forces, food industries, waste collection, deliveries and people attending a force majeure situation, among others). Therefore, private workers who not considered essential under this provision may commute by private means of transport (usually financed by the employer).
- Emergency assistance to work
Decree No. 332/2020 – which was recently extended for the 2020 tax period through Administrative Resolution of the Federal Tax Bureau (AFIP) No. 4898/2020 – has created an Emergency Assistance to Work and Production Program (Programa de Asistencia al Trabajo y la Producciòn) for employers and workers affected by the health emergency and the economic situation. This program essentially consists in the following benefits:
- Deferment or reduction of up to 95 percent of contributions to the social security system payment. This benefit will only be applicable for employers with up to 60 workers. If the limit of 60 employers is exceeded, the Preventive Crisis Procedure shall be applicable.
- If certain considerations are met, private companies up to 100 workers may be entitled to a compensatory wage paid by the national government under the terms of Law No. 14,250 and its amendments.
- Workers who meet the requirements set forth in Law Nos. 24,013 and 25,371 have access to economic benefits for unemployment in accordance with considerations stipulated therein.
Such benefits are applicable only under certain circumstances:
Workers and activities declared as essential within the health emergency will be exempt from the application of this decree.
- Sanitary measures in the workplace
Places and activities allowed to reopen shall adopt the following sanitary measures among any additional measure taken by specific activities:
- Social distancing (minimum 2 meters)
- Strict policies regarding hand hygiene, use of facial masks and gloves, if necessary
- As much as possible, activities must be held outdoors or in naturally ventilated places – air conditioner use is still not advisable
- Avoid overcrowded places or meetings – up to 10 people gathered in outdoor spaces is allowed
- Improve daily cleaning and disinfection and
- Temperature screening and health questionnaires shall be considered if people enter a given place (eg, shops, public entities and workplaces).
- COVID-19 as an occupational disease
By means of Decree 367/2020, occupational risk insurers (ART) must consider COVID-19 " to be an occupational disease," and the insurer may not "refuse to provide coverage" for workers considered essential. Through Decree No. 39/2021 issued on January 22, this provision has been extended to every worker currently performing its tasks and duties in their workplace.
The Labor Ministry, by means of the resolution No. 5/2020, set up a specific procedure to be followed if an employee reports a case of COVID-19. Further, it has been decided that workers affected by COVID-19 are able to make submissions online to the Central Medical Commission (Comisión Medica Central) and the Jurisdictional Medical Commission (Comisión Médica Local) through the online “Distance Procedures System” (TAD).
- Telecommuting provisions
By means of Decree No. 673/2020, the Telecommuting Law No. 27,555 was enacted, regulating dependent work provided from employees at home or from a place other than the employer’s facilities or workplace. Certain modifications were introduced to the Labor Contract Law (LCL) incorporating section 102 (bis) to the title “Modalities of the Employment Contract,” which set up the teleworking concept. This law also establishes minimum legal requirements to execute teleworking. More rights and duties for “teleworkers” have been determined: right of reversibility (ie, the employee shall be entitled to exercise the option to return to the workplace at any time), right to digital disconnection (ie, the employee shall only be requested to perform its tasks within working hours), trade union rights and right to privacy.
On January 20, through Executive Decree No. 27/2021, the legal framework applicable to the Telecommuting Law was approved. The Executive Branch regulated 11 (out of 19) sections of the Telecommuting Law including the right to digital disconnection; the conditions under which caretaking tasks may be performed by teleworkers; limits and conditions for reversal; how work equipment shall be provided, and expenses thereto reimbursed; union representation of teleworkers; health and safety conditions; and right to privacy.
There are criminal sanctions for breach of relevant work health and safety laws, workers' compensation laws and taxation laws. The Queensland and South Australian labor hire licensing laws provide for terms of imprisonment in respect of some breaches.
Criminal sanctions are not generally a concern.
Criminal sanctions may be imposed for a variety of reasons, including but not limited to the breach of health and safety obligations, breach of immigration laws, breach of data protection laws and breach of confidentiality.
Most legal dispositions with regard to labor law are subject to criminal or administrative sanctions in case of breach.
Violation of employment laws and discrimination can trigger criminal sanctions.
The main areas where criminal sanctions arise are under occupational health and safety legislation and related Criminal Code provisions. Both employees and directors may be subject to criminal sanctions.
Not applicable for this jurisdiction.
Limited circumstances, such as failure to pay salary in bad faith, may result in criminal sanctions.
Employees may be subject to criminal sanctions if they do not honor their non-disclosure or confidentiality agreements.
Employers may be subject to criminal sanctions if they perform actions to reduce enrollment to unions or to discourage such enrollment.
Illegal employment of foreigners may, under limited circumstances ,constitute a criminal offense, as could avoiding tax and health and social security payments.
Non-compliance with employment law may lead to criminal sanctions. Examples include employing a person without a valid work permit, failing to report and pay holiday pay, reading private emails, disclosure of trade secrets, breach of anti-discrimination provisions and failure to inform and consult in relation to collective redundancies, or business transfers.
Apart from fines relating to a breach of the rules on work permits and to the lack of reporting and paying of holiday pay, criminal sanctions related to employment legislation are rarely seen.
Typically, employers face criminal prosecution in connection with alleged discrimination, or where breach of occupational health and safety obligations has caused damage to an employee, or if the employer has not complied with working-hour regulations. Failure to comply with the Employment Contracts Act or with information obligations in connection with the transfer of an undertaking may also be sanctioned with a criminal fine.
Yes (eg, for discrimination, harassment, offense of obstruction, or where an employee is discovered undertaking "concealed" work).
Both the company's representative and the company as a legal entity can be held criminally liable.
Significant frequent violation of works council information and consultation rights may lead to criminal charges; however, this rarely occurs.
Hong Kong, SAR
The provisions of the EO are enforced, first by criminal law sanctions (where the usual penalty is a fine, except for payment-of-wages offenses, which can give rise to a sentence of imprisonment), and secondly, by way of civil remedies at the instance of the aggrieved employee. Further, in some instances, liability can be passed to the individual decision-maker of the employing company.
Not applicable for this jurisdiction.
Sanctions for violating labor statutes include both imprisonment and fine. The extent of such penal provisions will depend on the statute and the nature of the breach.
The Code on Wages, 2019, SS Code and OSH Code also provides for a single authority viz. inspector-cum-facilitator to carry out inspections of the compliance status of establishments under these codes and advise employers and employees on better compliance. Further, the inspector-cum-facilitator is required to give an opportunity to the employer to comply with the provisions of the said code within a stipulated timeline before initiation of certain prosecution proceedings. Additionally, the labor codes allow for the compounding of offenses, at any time before or after initiation of the prosecution.
Imposed on employers who breach the Manpower Law, including where employers participate in anti-union activity; intentionally and without any rights or illegally access computers and/or electronic systems owned by somebody else for the purpose of obtaining electronic information and/or electronic documents; violate workplace health and safety regulations; fail to submit written annual reports on their industrial relations to the Minister of Manpower; or fail to pay severance pay, the term of service recognition payment and/or compensation as entitlements that should have been received upon termination of employment or overtime due.
Failure to notify the Minister for Business, Enterprise and Innovation about mass layoffs is a criminal offense, although prosecution is rare. Employing a non-EEA or Swiss national without the required work permit is also a criminal offense. Failure to provide employees with a written statement containing 5 core terms of employment within 5 days of them commencing employment is also a criminal offense.
Failure to comply with various labor laws (such as minimum wage, work hours, unlawful discrimination and prohibited termination) is a criminal offense and may result in criminal proceedings (at least in theory).
Generally limited to the most serious cases of failure to comply with regulation regarding health and safety in the workplace. Under certain circumstances, failure to fulfill a court decision may lead to criminal liability.
Some violations are subject to criminal sanctions. For example, violations of the worker dispatch law or failing to pay wages, including overtime allowances, may result in criminal sanctions.
Although criminal sanctions are not a general concern in employment and labor practices, failing to comply with the provisions of the labor laws is punishable in a court of law either by imprisonment or fines.
Criminal sanctions may be imposed for a variety of reasons, including but not limited to the setting up of a trade union, breach of health and safety obligations, breach of immigration laws, breach of data protection laws and breach of confidentiality.
Certain mandatory labor law rules are criminally punishable by fines and/or imprisonment, notably:
Publishing a job offer without informing the Administration of Employment (ADEM)
Hiring an employee without arranging a compulsory medical examination
Hiring an employee from outside the EEA without authorization
Paying wages below the minimum social wage
Failing to comply with the rules on paid leave and
Failing to comply with the rules on public holidays.
None specific to employers.
Employees may be subject to criminal sanctions if they do not honor their non-disclosure agreement.
Employers may be subject to criminal sanctions if they pay to their employees less than the minimum wage or employ children under 15 years old.
Ranges from fines (up to EUR30,000) to the closure of the company.
Possible, but separate from labor process.
If any employer fails to sign an employment contract, it can be punished with imprisonment for not more than 6 months, a fine, or both.
If anyone violates any matters contained in an employment contract, he/she shall be punished with imprisonment for not more than 3 months, a fine, or both.
Employers or employees may be criminally liable for certain violations and subject to a fine, imprisonment, or both.
Criminal sanctions are not generally a concern.
Generally, none. However, there are criminal sanctions for breach of relevant health and safety laws.
Criminal sanctions are not applicable.
Willful or negligent breach of the Working Environment Act by the proprietor, employer or person managing the undertaking in the employer's stead is liable to a fine, imprisonment up to 3 months or both. In particularly aggravating circumstances, the penalty may be up to 2 years' imprisonment. This does not apply to breach of provisions regarding appointment and termination.
Criminal sanctions may be imposed for a variety of reasons, including but not limited to breach of health and safety obligations, breach of immigration laws, breach of data protection laws and breach of confidentiality.
According to the Criminal Code, violation of employment laws and discrimination may trigger criminal sanctions in the following cases:
- Harassment, sexual harassment, sexual blackmail and the spreading of images, audiovisual or audio materials with sexual content
- Forced labor
- Forcing or preventing an employee from joining a union or
- Deliberate infringement of Health and Safety at Work regulations and endangering the lives, health or integrity of employees in a serious way.
COVID-19 Special Regulations
The employer may instruct employees to work from home until July 2021. In case of employees at high risk of a COVID-19 infection, the employer must prioritize home office.
If the employer cannot maintain its workforce because its financial situation has been affected by the COVID-19 crisis and/or can’t apply the home office, it is possible to furlough employees. The application must be approved by the Labor Administrative Authority. The furlough may last until April 5, 2021, at most.
COVID-19 Health and Safety Plan
Peru is under lockdown measures as of March 16, 2020. The economic reactivation process started in May of 2020 and consists of 4 stages. If the employer’s activities are allowed, according to such reactivation process, it is necessary to elaborate and register a COVID-19 Health and Safety Plan prior the restarting of operations after quarantine.
Criminal penalties may be imposed for violations of the Labor Code of the Philippines and relevant Special Laws as provided therein, such as but not limited to illegal recruitment, sexual harassment, child labor, non-remittance of SSS, PhilHealth and Pag-Ibig contributions, and violations of collective bargaining agreements amounting to unfair labor practices.
An employer may be fined from PLN1,000 to PLN45,000 for committing offenses specified in the Polish Labor Code which relate to the employer's basic obligations.
There are criminal sanctions related to employment issues such as improper use of child labor, violation of the autonomy or independence of trade unions, discriminatory acts, disobedience to the labor authority, fraud in respect of withholding taxes or social security contributions and breach of safety rules.
Generally, legal persons are held criminally accountable for felonies committed by their legal representatives and de facto or de jure administrators in their name or on their behalf and to their benefit.
Criminal sanctions can be imposed for a variety of reasons, including, but not limited to, the breach of health and safety obligations, breach of immigration laws, breach of data protection laws and breach of confidentiality.
Infringement of health and safety rules may lead to criminal sanctions where human life has potentially been put in jeopardy. Criminal liability is also triggered, for example, in cases of repeated breach of the obligation to pay minimum salary, repeated refusal to permit labor inspectors access to any of the company's locations or refusal to provide inspectors with requested documentation.
Criminal sanctions are not generally a concern for employers acting as legal entities.
Not generally a concern under Saudi Labor Law.
Criminal sanctions include fines or imprisonment for offenses under the EA or other applicable statutes. Offenses under the EA include, but are not limited to, wrongful detention of an employee by the employer after a contract of services have been determined, obstructing an employee appearing before an inquiry held by the Commissioner, fraudulently inducing an employee to emigrate out of Singapore to work and failure to pay salary as stipulated.
Any director, manager, secretary or other officer of the company may also be charged with the same offense and punished upon conviction if it can be shown that the offense is committed with the consent or connivance of any act or default of such persons.
Non-payment of wages or severance pay may be punished by a prison sentence of up to 12 years, depending on the circumstances of and motive for the non-payment, and on the damage caused.
Employment law is largely decriminalized; however, specific legislation renders some behavior a criminal offense – for example, fraudulent behavior. Law enforcement bodies must be notified if the employer knows or suspects that the employee has viewed child pornography. Section 34 of the Prevention and Combating of Corrupt Activities Act, 2004 requires an employer to report certain criminal offenses committed by an employee. These include criminal offenses such as theft, fraud, forgery and extortion involving an amount over ZAR100,000. It also includes corruption regardless of the amount involved.
If the ruling of unfair dismissal is finalized by the court and the employer does not comply with the re-instatement order from RLRC, the employer may be subject to an imprisonment of up to 1 year or a criminal fine of up to KRW10 million.
There are criminal sanctions related to employment issues, such as those linked to work-related accidents and social security fraud.
Generally, legal persons will be held criminally accountable for the felonies committed in their name or on their behalf, and to their benefit, by their legal representatives and de facto or de jure administrators. Legal persons will also be criminally accountable for the felonies committed when perpetrating the corporate activities, and on account, and to the advantage, thereof.
An employer who intentionally or negligently fails to comply with an order or prohibition issued by the Swedish Work Environment Authority pursuant to certain regulations may be fined or sentenced to imprisonment for a maximum of 1 year.
Failure to comply with health and safety legal requirements; undeclared or illicit work; sexual or psychological harassment.
Taiwan, Republic of China
Not a concern.
The LPA and LRA both provide criminal sanctions including penalties of both fine and imprisonment. Further, in some instances, liability may be passed to the director of the employing company.
Most employment offenses in Tunisia lead only to fines at the low rate of TND 24 - 60. However, some specific offenses can result in imprisonment including:
- Intentional interference with the free selection of members of the Consultative Commission or with the selection of workers’ delegates.
- Repeat offenses regarding the formation of unions.
- Foreign workers working illegally who continue to work after being ordered to stop.
- Offenses concerning dangerous or unhealthy work environments.
- Interference with those who inspect establishments for compliance with health and safety provisions.
- Illegal strikes or lockouts.
- Failure to comply with requisition measures.
Criminal sanctions are not generally a concern, except in cases such as sexual harassment or an occupational accident.
Violation of certain provisions of the Employment Act may trigger criminal sanctions. For example, a person who records or causes to be recorded wrong, inaccurate or deficient information in an employee's records of service with an intention to defraud the employee or employer or any public authority, or who acts to conceal such fraudulent acts, commits an offense, as does an employer or employee who fails, without justifiable cause, to reply to a labor officer's written request for information within a period of 14 days from the time the request was received by the employer or the employee, as the case may be.
Ukrainian labor law provides for the following categories of liability for violations of the labor law:
- Financial penalties of up to approximately USD6,500, which may apply to the company
- Administrative fines for violations of the Code of Administrative Offenses, which may be imposed on company officers
- criminal sanctions, including imprisonment, for company officers for gross violations of labor laws (eg, intentional and unjustified failure to pay salary for a period exceeding 1 month)
United Arab Emirates
Criminal sanctions can be imposed for a variety of reasons, including but not limited to the setting up of a trade union, breach of health and safety obligations, breach of immigration laws, breach of data protection laws and breach of confidentiality.
Failure to notify the Secretary of State about mass layoffs is a criminal offense. Prosecution is fairly rare, but there has been an upward trend in prosecutions in recent years. Otherwise, criminal sanctions are not generally a concern.
Employers may be criminally liable for certain violations of federal and state employment laws such as wage and hour and health and safety laws. For example, California Division of Occupational Safety and Health (Cal/OSHA) violations can carry criminal penalties – not only against employers, but also against managers and supervisors. In limited circumstances, employers may be vicariously liable for the criminal acts of their employees. Employers may be liable for monetary statutory penalties (such as double or treble damages) for violations of wage and hour and other laws.
There are criminal penalties set in the labor law when an employer:
- Refuses to execute a re-instatement order
- Violates strike rights
- Fails to comply with or obstructs actions or procedures from the labor authorities or
- Illegally or fraudulently closes or ceases operations.
In these cases, the employer’s representatives or managers would be subject to criminal liability with imprisonment between 6 and 15 months.
Employers may also be held liable where an employee dies due to a serious breach of health and safety obligations in the workplace, subject to imprisonment between 8 and 10 years.
Employers may be criminally liable for certain violations, such as unlawfully dismissing an employee or using force or threats which cause an employee to resign, and may be subject to a fine, imprisonment or both.