Know Your Obligations When Employing a Foreign Worker
Foreign workers are valuable additions to a workplace, but failure to comply with the Regulations can lead to heavy consequences. In this article, we will provide you with tips on how best to comply with the requirements, and also alert you to the potential consequences of failure to do so.
Attaining a positive Labour Market Impact Assessment (LMIA) is not an easy task these days. And the work does not end when that LMIA is issued. In fact, complying with requirements imposed by the Immigration and Refugee Protection Regulations is an ongoing obligation for employers which must be followed vigilantly.
A Canadian employer who employs foreign workers through the Temporary Foreign Worker Program must comply with four (4) requirements according to the Regulations:
- The employer must be actively engaged in the business in respect of which the offer of employment was made (unless the offer was made for employment as a live-in caregiver);
- The employer must comply with the federal and provincial laws that regulate employment, and the recruiting of employees, in the province in which the foreign national works;
- The employer must provide the foreign national with employment in the same occupation as that set out in the foreign national’s offer of employment and with wages and working conditions that are substantially the same as—but not less favourable than—those set out in that offer; and
- The employer must make reasonable efforts to provide a workplace that is free of abuse.
The requirements are fairly simply, albeit vague. It boils down to providing foreign workers with good working conditions and making sure that the job they are actually doing is “substantially the same as” the one they were offered. The government has not provided much guidance as to the meaning of “substantially the same as”.
There are three potential ways that Employment and Skills Development Canada (ESDC) can review your compliance:
- Random inspections;
- Employer Compliance Reviews, which occur as part of the LMIA application assessment process to verify past compliance; and
- Reviews under Ministerial Instruction, in which public policy considerations may justify the revocation of an active LMIA or a refusal to process an application.
It should be noted that LMIAs may be suspended during any of the three types of reviews.
Employers may be selected for inspection if: there is reason for an ESDC officer or the Minister to suspect that the employer is not complying or has not complied with these conditions; the employer has, in fact, not complied; or even simply as part of a random verification of compliance. Now a past compliance review means reviewing only the past two years. In 2020, this will change to six years, i.e. in year 2020 compliance review dating back to 2014 can be assessed.
If the review finds that an employer has not complied with the requirements, there are a number of potential penalties that can be applied. The following consequences are applied to employers found to be non-compliant prior to December 2015:
- A two-year ban from using the TFWP;
- Publication of their name, address and period of ineligibility on a public website;
- Issuance of a negative LMIA for any pending applications; and/or
- Revocation of previously issued LMIAs.
Since 2015, the consequences for non-compliance with employer requirements have become more significant. Non-compliance after December 1, 2015 carries the following possible consequences:
- Administrative Monetary Penalties ranging from $5,000 to $100,000 per violation, up to a maximum of $1 million per year, per employer.
- A ban of one, two, five or ten years, or permanent bans for the most serious violations;
- Publication of the employer’s name, address and details of the violation(s) and/or consequence(s) on a public website; and/or
- Revocation of previously-issued LMIAs.
All of these consequences are based on a demerit point system, which takes the following factors into account:
- Type of violation;
- Size of the employer’s business;
- Employer’s history of non-compliance;
- Severity of non-compliance; and
- Whether the employer voluntarily disclosed information about potential non-compliance before an inspection was initiated.
The last point is significant as non-compliant employers are given the option to voluntarily disclose non-compliance so long as the disclosure is made prior to any compliance or enforcement action being taken. While it may be tempting to hope that the Departments of ESDC and Immigration, Refugee, and Citizenship Canada (IRCC) will not notice non-compliance, voluntary disclosure could be the difference between a temporary and a permanent ban or tens of thousands of dollars.
Foreign workers can add a lot of value to a workplace but the privilege of employing them comes with obligations. While the consequences of failing to comply with LMIA requirements are serious, the requirements are relatively easy to follow. As long as employers are careful to ensure that they are compliant, and honest and open once they realize they may have fallen below that standard, the most significant penalties can be avoided and the employer will receive the full benefit of employing a foreign worker.