For almost three years, since April 2011, the government has been loosely monitoring employers’ compliance in connection with their hiring of foreign workers. Employers who participated in the Temporary Foreign Worker Program (TFWP) were expected to uphold the terms and conditions of the original job offer, including those relating to wages, working conditions and employment in substantially the same position as represented in the documentation filed in order to obtain the work permit.
In the aftermath of public scandals during 2013, on December 31st, (yes, New Years Eve) the government announced Ministerial Instructions and amendments to the Immigration and Refugee Protection Regulations (IRPR) significantly broadening its enforcement powers and the scope of compliance reviews. Employers are now required to keep copies of any documents pertaining to compliance with conditions prescribed by the IRPR for six years, beginning on the day the work permit is issued to the foreign worker. Furthermore, also for a period of six years, the government has the authority to conduct random inspections of employers’ premises without search warrants, including the ability to interview both the foreign worker and other employees of the employer.
Pursuant to the changes, employers can be subject to the following harsh consequences when a determination of non-compliance is made:
• The employer may be deemed ineligible to participate in the Temporary Foreign Worker Program for a two year period.
• The employer may have its name, address, and period of ineligibility published online on a public “Ban List”.
• The employer may be issued negative Labour Market Opinions (LMO) on any pending applications. A positive LMO is a required approval to obtain a work permit in most cases.
• The employer may be found to have committed an offence for employing a foreign national in a capacity in which the foreign national is not duly authorized to work. Penalties for serious offences include $50,000.00 or imprisonment for a term of up to two years.
• The employer may be found to have committed an offence by misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the adjudication of an immigration application. Penalties for serious offences include $50,000.00 or imprisonment of up to five years.
• The employer may have previously-issued Labour Market Opinions and/or work permits suspended or revoked.
Best Practices: Avoid the “Ban List” as a Non-Compliant Employer.
In light of the sweeping changes to the temporary foreign worker program and increased immigration enforcement environment, it is incumbent upon employers to conduct a thorough internal review of their HR policy to implement measures to insure compliance. We are seeing the government initiate employer compliance reviews with small companies as well as worldwide multinational corporations with household names. Where desired, we can assist with the setting up of systems to insure compliance so that if/when the immigration inspector comes knocking on the door, you are well prepared.
There are several other changes to immigration law expected imminently, and DSF wishes to set up a list serve to provide breaking news on changes in immigration law as they happen. If you wish to be part of this group please email Asher I. Frankel.