Employer Compliance and Inspection in Hiring Foreign Workers

Employers Subject to Regulations

Employers hiring temporary foreign workers through a Labour Market Impact Assessment (LMIA) or by submitting an online offer of employment without an LMIA are required to adhere to the terms under which they hire them. These basic terms are typically outlined in an LMIA Application Form, LMIA Decision Letter, Annexes, or an Online Offer of Employment submitted via the Employer Portal.

Employers in this context are obliged to:

• Continue the business for which the foreign worker was hired.
• Comply with relevant labour and employment laws.
• Employ the worker in the job identified in the offer, ensuring the job title and duties remain unchanged. Any job modifications would necessitate approval through a new application.
• Pay the wages agreed upon in the offer. A minor increase to address inflation or to meet the prevailing wage is permissible.
• Ensure working conditions remain consistent, including the location of employment, hours of work, statutory holidays, sick leave, vacation days, and compensation of costs and benefits, as applicable.
• Prevent any form of abuse in the workplace.
• Provide access to health care services if a foreign national becomes ill or is injured at the workplace.
• Inform the foreign worker of their rights on or before the first day of work. It's important to note that these rights may vary slightly between LMIA-based and LMIA-exempt workers/job offers.
• Sign an employment contract with the foreign worker and provide a copy of this contract on or before the first day of work for LMIA-based jobs, or before a foreign national submits a work permit application for LMIA-exempt jobs.

Any modifications to the employment terms of a foreign worker, who has already been approved to work for a specific employer under a closed work permit, would necessitate a new LMIA application (if required) and a work permit.

Any mistakes or instances of unintentional non-compliance should be immediately ceased and reported to ESDC/Service Canada through voluntary disclosure. While this does not automatically serve as a defence against past non-compliance, it may be considered a mitigating factor reducing sanction in the event of an inspection.

Employer Inspections

The triggers for an employer inspection are quite broad and include:

• Known past non-compliance.
• Random selection.
• Suspicion by an officer based on any source of information, including voluntary disclosure by the employer.

To initiate an inspection, an officer will send an official letter detailing the reasons, required documentation, and the deadline to respond.

An officer may request any documentation relevant to the employment of a temporary worker from an employer or any third party, conduct on-site visits, or interview the employer or their staff, or third parties during the course of the inspection. Third parties have the right to refuse to provide such information or be interviewed.

Employers are required to maintain documentation related to the employment of temporary foreign workers for six years. These include, for example, an employment agreement, payroll records, confirmation of accommodation, insurance, business license, financial statements, lease agreement, and any other relevant documents.

Possible inspection outcomes include:

• Compliant.
• Compliant with justification, when certain non-compliances are identified, yet the employer made all reasonable efforts to comply or acted in good faith.
• Non-compliant, when an employer was not compliant with one or more conditions of hiring foreign workers, could not provide reasonable justification, their justification required compensation, or the employer did not respond to requests or was uncooperative during the inspection.

Non-Compliance Consequences

When an employer is found to be non-compliant, an officer will determine the appropriate sanction, which involves several steps:

• Determining the Type of Violation: Classifying the violation as Type A, B, or C, with Type C being the most serious.
• Assessing the Employer’s Compliance History: Considering any non-compliance since December 1, 2015. It's important to note that there is no expiration date for non-compliance as long as it occurred after this date.
• Assessing the Severity of the Violation: This includes whether the employer gained a competitive or economic advantage from the violation, if the violation involved abuse of a foreign national, negatively impacted the Canadian economy, if the employer failed to make reasonable efforts to minimize or remedy the effects of the violation, or if the employer has not made reasonable efforts to prevent a recurrence of the violation.
• Totalling the Points: Based on the above factors to determine the sanction and the period of ineligibility for hiring foreign workers.

Consequently, sanctions for non-compliant employers may include any or all:

• A warning letter (which is considered a violation in an employer's history for future inspections).
• An administrative monetary penalty ranging from CAD 500 to CAD 100,000 per violation, can accumulate in the case of multiple violations.
• A ban on hiring temporary foreign workers, ranging from 1 year to a permanent ban. For more information, see the relevant regulations.

Lawyer’s Assistance in Hiring Foreign Workers and Preparing for Inspection

If you are looking for a corporate immigration law firm or lawyer in Canada, we are here based in Toronto to help. Call us at +1-416-915-0808 or email info@leromlaw.com for additional information you need to start the process.