• Employment Law Breaches Can Now Result in Foreign National Hiring Bars
  • April 13, 2017
  • Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
  • Employers that incur penalties for severe breaches of employment laws on or after April 1, 2017 may face bars from recruiting foreign nationals for six months to two years. This measure applies to employers supporting work visa applications and approvals; those seeking accredited employer status or supporting residence class visa applications based on employment; and those who are part of the Recognised Seasonal Employer scheme.

    Penalties and Bars

    The Ministry of Business, Innovation and Employment (MBIE) will apply bars for major breaches that involve formal infringement notices and higher penalties, e.g., formal Labour Inspectorate infringement notices, Employment Relations Authorities or Employment Court penalties (including those resulting from private actions taken by employees) and Employment Court banning orders. The bar will be proportionate to the severity of the breach and the imposed penalty, as follows:
    • Six-month bar will apply for a penalty up to and including NZD 1,000;
    • 12-month bar will apply for penalties over NZD 1,000 but less than NZD 20,000;
    • 18-month bar will apply for penalties of NZD 20,000 and over but less than NZD 50,000; and
    • 24-month bar will apply for penalties of NZD 50,000 and above.
    Implementation

    The Labour Inspectorate will maintain a list of noncompliant employers, and INZ will use this list to prevent them from recruiting foreign nationals during the bar.
    Immigration New Zealand (INZ) will place employers that incur penalties before April 1, 2017 on a list of noncompliant employers, and visa applications for their employees will be judged against immigration laws that require compliance with employment laws. The exact rules for employers that incur penalties before April 1, 2017 will be developed in future regulations.

    What This Means for Employers and Foreign Nationals

    The MBIE will be informing employers that are likely to face a bar. Employers who are informed of a bar should contact their immigration professional to discuss the next steps.
    Foreign nationals working for employers found noncompliant during their employment will be allowed to work for the duration of their existing work visa, but will not be granted an additional work visa for the noncompliant employer.