BACKGROUND
Considerable time and effort have been spent to have a foreign national join your team in Canada. What happens after they arrive? Employees who are foreign nationals are protected by employment and human rights legislation, however, there are additional requirements that Canadian employers should be aware of.
Every employer who has a foreign national in their employ on a closed, employer-specific work permit is subject to a compliance regime. This includes both work permits that have been issued based on a Labour Market Impact Assessment (LMIA) or LMIA-exempt work permits that are tied to an employer, such as: intra-company transfers, treaty based work permits (ex. NAFTA/USMCA), and other work permits that promote Canadian interests (ex. Francophone mobility). Even work permits under the Young Professional and Co-op streams of International Experience Canada, a program geared toward young workers and students seeking to gain experience, are subject to the compliance regime.
The Government of Canada has introduced a variety of measures to ensure that employers in Canada respect the conditions stipulated in a foreign worker’s LMIA or work permit application. The conditions must be “substantially the same” as those presented in the LMIA or Offer of Employment (for LMIA-exempt work permits). Employers can be selected for an investigation at random, if there is a reason to suspect non-compliance or because of previous violations. The inspection is conducted on a specific work permit (or several specific work permits). Employers can be inspected during a six-year period commencing on the first day of the work permit holder’s employment on the work permit.
WHAT YOU NEED TO KNOW: THE INSPECTION AND FACTORS ASSESSED
The inspection is a paper-based process with the involvement of both Service Canada (Employment and Social Development Canada) and Immigration, Refugees and Citizenship Canada (IRCC) who makes a final determination. Officials are also authorized under the Immigration and Refugee Protection Act to conduct on-site visits without a warrant. Inspectors have wide-ranging powers allowing them to interview employees and request the production of documents during their visit.
The Immigration and Refugee Protection Regulations set out the following factors which may be assessed in the course of an inspection:
- Whether the information submitted for a work permit application was accurate;
- Whether documents relating to compliance were retained (ie. Recruitment, employee benefits, etc.);
- Whether the information submitted for the LMO/LMIA application was accurate;
- Whether the company complied with federal and provincial laws regulating employment and recruitment;
- Whether the foreign national works in the same occupation, earns substantially the same wage, and has the same working conditions included in the offer of employment;
- Whether the company made reasonable efforts to provide a workplace free of abuse (ie. Company policies, training, etc.).
- Whether the company is actively engaged in business.
The Regulations also allow officers, in the context of a LMIA based work permit, to assess whether the consequences of hiring the foreign national that were identified in the application have materialized. For example, whether the employment of the foreign national has resulted in a transfer of knowledge or skills to Canadian workers or in job retention of Canadian employees. If the employer committed to making reasonable efforts to hire and train Canadian citizens/permanent residents, that may also be assessed. Employers of caregivers are subject to additional requirements.
Employers must be able to prove that the information provided in the context of the application was accurate and that they have retained the appropriate documents relating to compliance with the required conditions for six years from the work permit holder’s first day of work.
PENALTIES FOR NON-COMPLIANCE
In 2015, the penalties for non-compliance expanded and now include Administrative Monetary Penalties (AMPs), bans from hiring foreign workers, publication on a list of non-compliant employers, and very serious situations, imprisonment. If an employer is determined to be non-compliant with multiple conditions or requirements, each act of non-compliance will be deemed a separate violation. Penalties under the AMP regime are cumulative, up to a maximum penalty of $1 million. A point system is used to calculate the AMP, considering various factors including the type of violation, the company’s size, whether there is a history of non-compliance, whether the employer enjoyed benefits as a result of the non-compliance, and whether employees were victims of abuse stemming from the violation. Information sharing between Service Canada/IRCC and other federal and provincial departments could result in other investigations.
THE PLAN: PREVENTING VIOLATIONS
One of the biggest challenges that companies face is the 6-year time period when an inspection could occur. Much can change in the course of six years, from switching to a new benefit provider and using new corporate record keeping software, to changes in a human resources department. These changes present challenges in ensuring that record keeping requirements are met and that the conditions presented in the work permit application are maintained.
Given the sheer challenge of the time period in which an inspection can occur, it is important to have processes and systems in place that can withstand change. Training of key personnel is required so that the company’s obligations are understood with respect to the foreign worker. A plan for staff transitions should include training on record keeping and other compliance obligations.
Changes to the worker’s employment conditions may need to be reported to Service Canada/IRCC and in some cases, a new LMIA or Work Permit is required. It is important to understand that variations to a work permit holder’s employment conditions, such a promotion or a new work location, which would be quite normal in the course of an employee’s career, must be carefully thought out and researched prior to execution.
Having systems and processes in place to ensure that your company is compliant will be well worthwhile and will prevent an inspection response from becoming a daunting process. Ensuring that the company is compliant from the foreign worker’s first day of work in Canada will go a long way in protecting the company from penalties and will help contribute to the integrity of the system.
