• Right-To-Work Checks Simplified, Employer Sanctions Increased
  • May 28, 2014
  • Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
  • Employment eligibility verification requirements have been simplified while fines for noncompliant businesses have increased, effective May 16, 2014.

    Simplified Right-to-Work Checks

    The list of acceptable documents that can serve as proof of work authorization has been reduced, which will simplify the verification process for employers. With the change, the Home Office establishes biometric residence permits as the primary form of evidence, with similar immigration documents, such as Residence Cards and passports endorsed with authorization to work, also accepted. Employers that can establish they checked these documents prior to the commencement of employment have a statutory excuse to allegations of non-compliance.

    Employers are no longer required to re-verify their employees’ work rights annually. Rather, they are required to conduct re-verification checks that coincide with the expiration dates of their employees’ visas.

    The grace period for employers conducting a right-to-work check of employees following a merger, acquisition or other change in corporate ownership has been doubled to 60 days after the corporate reorganization.

    Increased Fines

    The maximum civil penalty that can be imposed on an employer for employing an unauthorized worker has been doubled to £20,000. The Home Office’s method of calculating civil penalties has also been simplified from the previous sliding scale. The maximum civil penalty for a first breach is up to £15,000 per unauthorized employee. Subsequent violations can result in a maximum penalty of £20,000 per unauthorized employee. The penalty assessed will be less than the maximums where mitigating factors, such as employer cooperation with ongoing investigations, are in evidence.

    What This Means for Employers

    Employers should see a reduction in the administrative and logistical burden of conducting right-to-work checks as a result of the simplification, particularly with the elimination of annual follow-up checks.

    However, many Tier 2 sponsors will need to change their internal processes to account for not conducting the annual follow-up checks. Many sponsors use the annual checks as an opportunity to verify up-to-date contact and next of kin details, and to confirm that employees' roles and duties have not changed. These processes are an invaluable part of ongoing immigration compliance for Tier 2 sponsors and may need to be re-visited in another context.

    The increase in potential penalties for facilitating or permitting unauthorized work highlights the importance of establishing internal procedures for initial right-to-work checks and for reliable systems to track visa and work permit expiration dates.