By Jacqueline Bart of BartLAW Canadian Immigration Barristers and Solicitors
On 1 December 2015, the Canadian government brought into force stringent employer compliance rules. These rules place Canada first as the toughest jurisdiction against non-compliant employers. The rules introduce a comprehensive formula to assess monetary administrative penalties for employer non-compliance, in addition to other penalties set out below.
By way of background, the entry of temporary foreign workers to Canada is facilitated by two main programmes: the Temporary Foreign Worker Program (TFWP) and the International Mobility Program (IMP). The TFWP encompasses all work permits issued to temporary foreign workers based on an assessment of the labour market in the area the temporary foreign worker will be working, known as a Labour Market Impact Assessment (LMIA). The IMP is the immigration programme that encompasses all work permits (and work permit exemptions) that were issued without obtaining an LMIA.
Regardless of which of the two programmes was utilised to facilitate the entry of a foreign worker, corporations sponsoring foreign workers must uphold the conditions as set out in the employer immigration compliance rules. Employers of temporary foreign workers are deemed aware, based on current law, of their responsibilities and obligations under the current immigration compliance government rules.
Employment and Social Development Canada (ESDC)/Service Canada has the authority to review the activities of any employer of a foreign worker by conducting one of two types of audits:
Employers with foreign workers hired under the TFWP could also be subject to a third type of audit, an Employer Compliance Review.
The purpose of the government inspections/reviews/audits is to hold employers accountable to the following requirements based on the content of their work permit application:
Employers should ensure and regularly review the activities related to the employment of temporary foreign workers to ensure they continue to uphold the conditions as provided to ESDC/Service Canada and IRCC at the time of the work permit application.
Inspections are warrantless. During an inspection, ESDC/Service Canada or IRCC will verify whether employers have upheld the conditions set out in the offer of employment and the positive LMIA letter and annexes in the case of the TFWP, or the offer of employment, employer compliance filings and work permit application in the case of the IMP. These conditions relate to general requirements for employers, such as providing the agreed-to wages, making reasonable efforts to provide a workplace free of abuse and maintaining the necessary records to demonstrate compliance.
Inspections may be conducted during a period of six years beginning on the first day of the period of employment for which the work permit is issued to the foreign worker. Once an audit is triggered, an investigation will occur. Auditors may conduct site visits without a warrant, and may also interview the employer, and any person employed by the employer, and ask any relevant questions based on the conditions set out in the LMIA application, decision letter and annex, or the compliance filing and work permit application.
During a warrantless inspection, ESDC/Service Canada or IRCC investigators have the authority to: use copying equipment on the premises, by requesting that the employer make copies of documents and remove copies for examination, or if not possible, make copies on the premises; remove the documents to make copies; take photographs and make video or audio recordings to support the findings of the inspection; examine anything on the premises that relates to the conditions set out in the inspection; access the employer’s computer or other electronic device in order to examine any relevant information/document contained in it; be accompanied or assisted on the premises during the inspection; and/enter a private household with a warrant or consent.
Based on IRCC policy and law, employers found non-compliant as a result of an inspection from a violation that occurred prior to 1 December 2015, could be subject to:
Employers found non-compliant as a result of an inspection from a violation that occurred on or after 1 December 2015 could be subject to:
Consequences for violations that occur on or after 1 December 2015 are determined based on a points system that considers:
Consequences for employer violations under the rules (either before or after 1 December 2015) also include the following:
The above noted rules apply extraterritorially and employers (inside and outside Canada) are “deemed” to know the law (ignorance of the law is not a justification).
The government has indicated that one in four employers will be audited for compliance. Audits, inspections and reviews of employer compliance have begun under the new rules.
The rules place a significant responsibility on employers and their immigration counsel to ensure that all compliance documentation is in order and maintained for a period of six years after the foreign worker’s employment terminates. In addition, the regulatory amendments will create significant due diligence responsibilities for business and their corporate counsel in mergers or acquisitions. Immigration is now a mandatory area for compliance review in any corporate transaction prior closing the sale or merger.