Employer Compliance Inspections: what to know when hiring a temporary foreign worker

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All employers who make an offer of employment to a foreign national are responsible for complying with the program under which they apply. Work permits are issued to foreign nationals through one of the following programs:

  1. International Mobility Program (IMP) for foreign nationals who are exempt from the Labour Market Impact Assessment (LMIA) requirement due to the broad economic and cultural benefits they bring to Canada. Immigration, Refugees and Citizenship Canada (IRCC) has sole responsibility for the International Mobility Program

 

  1. Temporary Foreign Worker Program (TFWP) includes streams that require employers to obtain an LMIA, and seeks to address short-term labour shortages in the absence of available Canadians or permanent residents. Employment and Social Development Canada (ESDC) leads the TFWP, with work permits issued by IRCC

After the work permit has been issued, employers may be subject to an inspection by IRCC or ESDC to show that the wage received and the conditions under which the foreign national will be or is working are essentially the same as, but not less advantageous than, those described in the job offer.

The inspections aim to help protect temporary workers from mistreatment and ensure that the immigration program is being used as intended.

There are three reasons an employer could be selected for an inspection:

  • there is reason to suspect non-compliance;
  • the employer has been found non-compliant in the past; or
  • the employer has been selected randomly.

An inspection may be initiated on the first day of employment for which a work permit is issued, or up to a maximum of six years after. Inspections are typically administrative in nature where employers are required to submit documentation to demonstrate their compliance with the program conditions. However, during an inspection, an officer may also enter and inspect any place of work employing foreign nationals, and interview any foreign or Canadian workers at the worksite to assess compliance.

Final Decision

Through an inspection, an employer may be found to be compliant, non-compliant but with justification, or non-compliant.

If an employer is found to be compliant or non-compliant but with justification, no further action will be taken. Violations may be justified if they are the result of:

  • a change in federal or provincial law;
  • a change to the provisions of a collective agreement;
  • a major change in economic conditions that directly affects the business of the employer,
  • an error made in good faith by the employer, such as an unintentional administrative or accounting mistake, and the employer later made efforts to correct it for temporary workers who were affected;
  • an exceptional and unforeseen event (i.e. natural disaster); and
  • other similar situations.

If an employer is found to be non-compliant, they could face a range of consequences. Penalties are determined on a points system that depends on the type of violation, an employer’s compliance history, the severity of non-compliance, the size of the business (for financial penalties only), and whether you voluntarily disclosed information about possible non-compliance before an inspection was initiated.

Possible penalties may include:

  • warnings;
  • monetary penalties ranging from $500 to $100,000 per violation, up to a maximum of $1 million over one year;
  • a ban of one, two, five or ten years, or permanent bans for the most serious violations;
  • your company’s name and penalty published on the list of employers who failed to comply with the conditions (when you have received a monetary penalty and/or a ban);
  • work permit applications associated with your business being refused; and
  • previously-issued work permits associated with your business being revoked.