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Written by: Evelyn L. Ackah
Employer Compliance Inspections: Not Just for Labour Market Impact Assessments Anymore
Does your company employ Temporary Foreign Workers (TFW) through the International Mobility Program (IMP)? If so, you need to be aware of the Canadian government’s increased focus on employer compliance. Employers named on a work permit issued to a foreign national on or after December 31, 2013 may be subject to a compliance review by the Case Management Branch (CMB) of Immigration, Refugees and Citizenship Canada (IRCC). Workers under the IMP are foreign nationals that are able to work in Canada without the need for a Labour Market Impact Assessment (LMIA) such as Intra-company Transfers or NAFTA Professionals.
A compliance review may be triggered in one of three ways: 1) random selection 2) known past non-compliance and 3) reason to suspect. Under the TFW Program, the frequency of a random selection for a compliance audit is one in four employers. However, under the International Mobility Program, the frequency of the random selection is not specified.
To ensure your company is in compliance and you are prepared in advance of receiving a Notice of Inspection, we recommend you review the files of any LMIA exempt TFWs currently employed with your company. Employers are obligated to maintain all documents pertaining to the Offer of Employment to a Foreign National Exempt from a LMIA (Offer of Employment form or information provided in the Offer of Employment through the Employer Portal) for a period of six years.
In addition to the specific agreements signed by the employer in the Offer of Employment, the Case Management Branch may also review to ensure compliance with:
- Existing federal, provincial and territorial employment legislation;
- Occupation wages and working conditions;
- Maintaining an abuse-free workplace. Abuse is defined as:
- physical abuse, including assault and personal confinement
- sexual abuse, including sexual contact without consent
- psychological abuse, including threats and intimidation; and
- financial abuse, including fraud and extortion.
- Accuracy of the information provided in the Offer of Employment
You should regularly review the legislation for your province/territory as well as any changes to federal policy. The employer is expected to comply with all legislation, including legislation enacted after the issuance of the work permit (retroactive). For example, Alberta recently made changes to exemptions for Workers Compensation coverage for farmers, this change should be reviewed if there is a possibility that it may impact the TFW’s Offer of Employment.
When you submitted the Offer of Employment, your company agreed to a specified salary, hours worked per week, location of employment and other working conditions. Under a Compliance Review, records will be reviewed to ensure that the worker is/was working under those same conditions. If a worker is working more hours, getting paid less or not working at the location specified, then the employer is at risk of being found non-compliant.
Maintaining an abuse-free workplace is the focus of all HR professionals regardless of the nationality of the employees. Under the IMP, the responsibility for compliance with an abuse-free workplace can fall on more than just one person. If IRCC receives information indicating that an employer, or one of their employees, has been accused of committing, or is convicted of certain abuse-related crimes, (physical or sexual assault in the workplace, uttering threats to an employee, etc.) then that employer will be inspected to determine whether reasonable efforts have been made to provide a workplace free of abuse. If the employer is a larger organizational structure, then everyone who is in a supervisory role has a shared responsibility to ensure employer compliance.
We suggest you review all past and current Offers of Employment to ensure you are able to prove that all information provided is accurate. Keep this information at hand in the event of a Compliance Review.
Once the review has been completed, there will be one of two results: Compliant or Non-compliant. A finding of non-compliance will result if the review indicates the employer has not complied with one or more of the conditions in section 209.2 of the Immigration and Refugee Protection Regulations and the employer has failed to provide an acceptable justification for non-compliance. If the justification for non-compliance provided requires the employer to provide compensation to the TFW and the employer has not done so, (example: minimum wage increased and employer owes back pay), then the employer will be found non-compliant. In addition, a finding of non-compliance may also be made if an employer refuses to provide requested documentation or is otherwise uncooperative during an inspection.
Penalties for non-compliance can result in penalties such as refusal of access to the IMP for a period of up to two years, and depending on specific circumstances, may also have work permits for foreign nationals in their employ revoked under Ministerial Instructions. Other administrative penalties are also possible, including monetary penalties and the publication of the employer’s information on one or more of the Government of Canada’s websites.
To minimize the risk of penalties, we recommend all employers stay up to date provincial/territorial Employment Standards, changes in Federal law and the status of the company in other countries (affecting intra-company transferees). Regularly review your employment files pertaining to your IMP workers and ensure your company is in compliance with the Offer of Employment at all times. If your IMP worker has different conditions than those set out in the Offer of Employment, seek advice immediately to correct the situation. Be aware of the work culture and be vigilant about any forms of harassment, intimidation or bullying by other employees, regardless of their position. Review, update and enforce company policies setting out workplace behavior; consider providing training to employees and supervisors to recognize abuse and address it; and follow through on steps to address abuse if it occurs.
It is vital that employers be aware of the additional obligations and compliance requirements involved with employing Temporary Foreign Workers now - whether they are under LMIA approvals or by way of the International Mobility Program. The risk for non-compliance is too great, both for the company and the senior leadership and human resource professionals in the organization.
Evelyn Ackah is the Managing Lawyer and Founder of Ackah Business Immigration Law, one of the top business immigration law practices in Canada. See Evelyn in person at this year's CPHR Alberta Conference!