By Omri Nissani, Civil Engineer. Adv. Maya Arielli, an expert in employment of workers from the Palestinian Authority, contributed to writing this article.
The risk of illegal workers being involved in terrorist attacks and the implications on the employer
On 15th January 2024 two Palestinians who entered Israel without work permits and worked in a car wash, stole two customers’ cars and went on a killing spree in Ra'anana, killing one and injuring 18. After they were arrested, both admitted to the murderous attack and the investigation revealed that they had an extensive prior record of criminal activity and involvement in terrorism.
We ask whether criminal charges can be brought against the owner of the car wash who employed the two terrorists, or whether the victims of the attack can sue the owner of the car wash for damages in a civil court? How is this event relevant to employers in the construction industry and do their insurance policies cover criminal proceedings brought against them?
With the assistance of Adv. Maya Arielli, an expert in employment of Palestinian workers including to the construction industry, we shall address these issues in detail.
We would preface by stating that shortly after the terrorist attack in Ra'anana, the owner of the car wash was charged with aggravated circumstances of employing illegal workers and giving them shelter. If he is convicted, he could face a long prison sentence and a very heavy fine.
The manpower shortage is a dangerous breeding ground
The current manpower shortage in the construction industry due to the absence of tens of thousands of Palestinian workers is getting worse as time goes on, and one of the consequences is that many employers are in a predicament and are breaching the law by employing illegal workers from the Palestinian Authority.
Over the years, certain illegal workers have being involved in terrorism and numerous attacks have been perpetrated by terrorists who crossed into Israel in the guise of construction workers. In January 2024, the police announced unprecedented measures to combat the phenomenon in an operation to target transporters of illegal workers, employers and accomplices, and the operation was expanded following the attack in Ra'anana.
Adv. Arielli points out that employing Palestinian workers without work permits is an offense, regardless of whether they are involved terrorism, crime or not. A contractor or subcontractor who employs illegal workers is firstly subject to an administrative fine of NIS 10,000 for each worker, and double in the event of a repeat offence. At the same time, they face criminal proceedings which may lead to fines reaching hundreds of thousands of shekels and possible imprisonment. In April 2024 the Israel Entry Law was amended and the penalties for these offenses were substantially increased.
Adv. Arielli explains that asides imposing sanctions directly on the employer, an administrative shut-down order can be issued on the business, and in the case of a contractor, the Registrar of Contractors will be notified. In the case of the terrorist attack in Ra'anana, the police arrested the owner and issued an order to shut the car wash for a period of 30 days.
It is important to add that employing an illegal Palestinian worker in the current climate can be viewed very severely by the law and enforcement authorities, especially if the worker is involved in terrorism during their illegal employment. We would also add that employing illegal workers creates numerous additional problems arising from unreported income since the worker cannot be registered with the tax authorities, the inability to make National Insurance payments for the worker and the ensuing difficulties in the event of a work accident, to name a few.
Adv. Arielli points out that anyone who is injured in a work accident in Israel is entitled to make a civil claim for compensation, regardless of any criminal proceedings taking place. This right ostensibly enables the victim to sue not only the party directly responsible for their injury but also other parties who can be held liable in one way or another.
We did not find any specific or consistent case law concerning employing illegal workers who are involved in terrorism, or in the case of claims against their employers by victims of terrorism, although there is a first for everything.
A victim of a terrorist attack who can prove that the terrorist was employed by someone who was aware that he entered and worked in Israel illegally would have grounds to sue the employer and it is quite feasible that their claim would succeed. The tort liability of the employer will derive from the following questions:
The liability of the employer of an illegal worker who is injured on the job
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Was the terrorist a temporary or casual labourer who the employer did not known beforehand, or had he worked for the employer for some time?
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Was the absence of a work permit a technical or substantive matter?
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Was the employer aware of the previous record of the worker and was there any reason to suspect he would be involved in terrorism?
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Did the employer supervise the workers and did he notice any suspicious conduct?
Was the terrorist attack carried out during work hours and did the terrorist use anything taken from the employer to commit the attack? (such as a stolen car in the case of the terrorist attack in Ra'anana)
What is the position of the insurance companies?
Contractors All Risks policies do not cover any case in which an employee is involved in any act of terrorism and the blanket exclusion applies to legal expenses, fines, defending criminal proceedings, direct or indirect damages.
Insurance companies will not pay the fees of lawyers representing any contractor involved, nor cover any compensation or fine imposed in legal proceedings in the case of terrorism.
The extension of cover for expenses to defend criminal proceedings is intended to cover completely different situations, such as charges brought on grounds of manslaughter of a worker on a construction site, although insurance policies will not provide any type of cover or protecting connected in any way to terrorism.
