Employers seeking to employ foreign nationals must meet some standard requirements set in the Immigration and Refugee Protection Regulations (IRPR). When an employer submits an offer of employment for recruiting a foreign national, and a work permit is issued for the same, an employer may be subjected to an inspection from the first day of employment up to 6 years. Inspections are directed towards ensuring that the employer is following the proper professional ethics as defined by Immigration, Refugees, and Citizenship Canada (IRCC). If any deviations or withdrawals are found with the employer, the IRCC has the authority to take punitive measures against the employer. An employer can be subjected to inspection under circumstances where –
An officer of Employment Social Development Canada (ESDC) has a reason to suspect an employer of violating norms. The information that raises suspicion against the employer can come from several sources like – media, an NGO or a union, an allegation or a complaint, the CBSA, or from any province or territory
An employer has violated employment procedures in the past.
An employer is subjected to a random inspection.
ESDC is responsible for assessing the compliance of the employer and is empowered to interview employer, review their documents, seek relevant documents related to the inquiry, review time sheets and activities/roles of the foreign workers employed and search the employer’s work space without any warrant. Since the Employer Compliance procedure underwent some changes in 2013, there are different inspection procedures and penalties. The penalty is based on the assessment of the violation and its severity. In cases where a violation is committed prior to 1 December 2015, employers are banned for 2 years from accessing International Mobility Program (IMP) and Employment and Social Development Canada’s Temporary Foreign Worker Program. For offences committed on or after 1 December 2015, the employers receive a warning letter, a penalty, and restraint from accessing the International Mobility Program (IMP) and TFW for almost 2 years. In extreme cases, there can be a revocation of work permits for the foreign nationals working for the employer. Under the Employer Compliance norm, employers are required to fulfil the following requirements –
The employer should make sure that they meet the requirements of the Temporary Foreign Worker Program (TFW), which is outlined in documents including Labour Market Impact Assessment and such.
The employer must preserve all the documents related to LMIA and letters and annexes up to 6 years.
The employer must immediately inform the ESDC of any modifications or errors in the LMIA, the foreign worker’s recruitment policy, or the work environment.
Employers must also keep a track on activities of foreign nationals to see that they uphold Temporary Foreign Worker conditions.
Inspection to Enquire Employer Compliance: Employment and Social Development Canada (ESDC) and Service Canada (SC) under the IRPA and have the authority to conduct inspections of any employer who recruits foreign based nationals under the Temporary Workers Program and determine if the norms of the programs are being appropriately followed. The inspection can be conducted with or without notice to the employer. Whenever an immigration officer suspects an foreign workers work permits, all concerns have to be submitted to the Case Management Branch (CMB), Investigation and Exceptional cases Division (IECD). Further, the CMB conducts the inspection or may ask the ESDC or the SC to handle inspection on behalf of IRCC. The inspection team has the full authority to conduct an entirely paper-based inspection or pay an unannounced on-site visit without a warrant excluding private residence. The team can interview the employer or any other employee to seek answers to relevant questions as outlined in the LMIA application or decision letter and assess the working conditions of the workplace. In cases where an officer seeks an access to the employer’s workplace premises, the investigating officers are empowered to take certain measures like –
The officer(s) can photocopy relevant documents by using on-site copying equipment.
The officer(s) can examine anything on the premises that relates to the inspection.
The officer(s) can take photographs or make audio-video-recordings as a proof or as a data for further inquiry.
The officer(s) can be assisted or accompanied during the inspection.
The officer(s) can also access private lodgings of the employer with a warrant.
The officer(s) can interview any person/employee that they important for procuring required information.
Employee Compliance Assurance: During the inspection, the ESDC or SC Canada evaluates if the employer has complied with the conditions outlined in the job offer made to the foreign national on temporary work permit. For this, the officers will determine the following details-
The employer is required to report at any given time or place for inquiry. In case the employer is not available for some unavoidable reason, the employer must ensure that a representative will aid the officer(s).
The employer must provide all the necessary documents required by the investigating officer(s).
The employer or the assistant are required to co-operate with the officer(s) during the inquiry and provide whatever information or documents are asked for.
The employer has remained directly engaged in the business for which he hired the foreign national, at least for the period of the validity of work permit.
The employer must comply with regulations of employment as determined under federal/provincial/territorial laws.
The employers must have given employment to the foreign national under the job profile committed during the time of application of work permit.
The employers must pay the foreign national as per the prevailing market- standard wage norms.
The employer must ensure that the working conditions for the hired professionals are conducive, free of abuse and non-discriminatory.
The employer must demonstrate if any prior commitment made at the time of LMIA issuance related to skill and knowledge of Canadian nationals have been delivered.
The employer must demonstrate that activities related to transfer of skills and knowledge for the benefit of Canadian nationals were undertaken.
The employer must ensure that sufficient efforts were made to recruit Canadian nationals or permanent residents, and proper advertising was done for the same.
The employer must be able to prove that accurate information was submitted at the time LMIA was issued.
The employer must properly retain or preserve all the compliance documents issued by either governing body for up to 6 years at least.
In cases specific to Live-in care givers, the employer must ensure that –
Foreign national lives in a private fully furnished and decent accommodation in Canada and provides all necessary child-care, senior home support care or care for a disabled in the household without any supervision.
Employer must pay the foreign national as per the prevailing wage standards.
Non-Compliance Outcomes: Employers who are found guilty of non-compliance for a violation committed before 1 December 2015 could be subjected to –
A 2-year ban from using Temporary Foreign Worker Program (TFWP) and the International Mobility Program (IMP).
The publishing of the employer’s name, address, and ineligibility duration on the official website of IRCC.
A non-favourable LMIA on pending applications, if any.
A revocation or cancellation of LMIA issued earlier.
Employers who are found guilty of non-compliance for a violation committed on or after 1 December 2015 could be subjected to –
A warning letter issued by ESDC or SC.
Monetary penalties per employee.
A ban of two or more years, or even a permanent one in cases of serious violations.
The publishing of their name and address and ineligibility duration on the official website of IRCC.
A non-favourable LMIA on pending applications, if any.
A revocation or cancellation of LMIA issued earlier.
The consequences for violations that are registered on or after 1 December 2015 are assessed on the basis of a point-based system that analyses the type of violation, the employer’s compliance history, the seriousness of violation made by the employer, the size of the employer’s business, and if the employer had earlier informed about a non-compliance before the inspection was undertaken.
Process of Informing non-compliance: Non-compliance findings will be sent to the employers for justification over the concerns raised. If an employer fails to address the issues raised, or if the justification is disapproved by the ESDC and SC Canada, the employer will be charged with a Notice of Preliminary Finding that illustrates all information about the violation and its penalty. An employer is given a period of 30 days to re-submit a justification related to the violation. The employer is permitted to apply for an extension of the response period. If the reason is genuine, an extension will be permitted. Any new information given by the employer after this time will be reviewed by a different officer. After reviewing the justification, the results may remain same, or be entirely lifted. Full assessment of the violation including penalty, violation factors and other consequences will be informed fully to the employer.
Conformity with Federal, Provincial/Territorial Employment and Recruitment Norms: During the inspection, it is reviewed if the employer had been complying with the federal, provincial, or territorial employment norms starting from the date when the work permit was issued. Compliance in these cases is generally reviewed according to the regulations of employment practiced in the province or territory where the non-Canadian national works. These regulations can be related to health and safety issues, unwarranted dismissals, right to file grievances, and workplace privacy laws.
The inspecting officers hold the authority to inquire about some specified type of documentation for an issue of non-compliance such as –
Proof of registration.
A compensation clearance letter of an employee that demonstrates that a foreign national is registered with the worker’s compensation board and, also has an account.
Any other official documents, particularly documentation from the provinces available in the form of information sharing agreements or any general information put on the public platform such as the internet.
Documents that might be needed to verify Employer Compliance: The employer must abide and submit all required documents during the inspection. The documents that an employer may be asked to produce include business license, commercial lease agreement, T2 Schedule 125 Income Statement Information and T2 Schedule 100 Balance Sheet Information in order to determine total wages paid to a foreign worker. Other similar documents include Pension Plan, insurance plan, income tax etc. and other documents that establish that payment of over time, and/or other perks and deductions. The employer may also be asked to submit the provincial/territorial employer and recruiter registration license/certificate to demonstrate compliance. The employer may be asked to submit proofs related to creating awareness in other employees regarding strict guidelines of code of conduct, or training of employees to ensure an abuse-free work environment to foreign employer. The proofs may include anti-harassment policies and any other such protocols that prove a healthy work culture at the workplace. The employer may also be asked to submit time sheets of workers to assess if the employees were working for the number of hours in accordance with those stated in the job offer. The job offer document given to the foreign worker to review if the foreign worker is recruited on the same job as promised during the application of work permit. Apart from this, other documents include proof of the employee’s decent accommodation, employment contract, travel itinerary, and/or confirmation of insurance coverage.