Employers – An Introduction to Employer Compliance, Warnings, Bans, and Administrative Monetary Penalties

Under the foreign worker programs in Canada, the Temporary Foreign Worker Program (“TFWP”) in which Labour Market Impact Assessments (“LMIAs”) are required, and the International Mobility Program (“IMP”) where employers are required to submit an offer of employment, employers have certain responsibilities and must comply with the conditions provided to Immigration Refugees and Citizenship Canada (IRCC) or Employment and Social Development Canada (ESDC).

These include:

employing the foreign worker under substantially the same wages and working conditions but not less favourable than those listed in the initial application;
employing the foreign worker to work in the same occupation as listed in the initial application;
having anti-abuse, anti-harassment, code of conduct policies, complaints policies, dispute resolution policies, etc.;
providing foreign workers with the most recent information with respect to their rights in Canada in the language of their choice on or before their first day of work in Canada and having the foreign workers’ rights freely viewable in a common area or on the company website in both English and French;
keeping a workplace free of financial, physical, sexual, or psychological abuse;
continuing to be engaged in the business for which the foreign worker was hired;
ensuring compliance with federal, provincial and territorial laws related to recruitment and employment in the province or territory in which the foreign worker is being hired;
making reasonable efforts to provide access to health care services when a foreign worker becomes injured or ill at work;
not recovering fees from the foreign worker related to LMIA application filing and employer compliance;
ensuring third party recruiters do not charge or recover recruitment fees from the foreign workers;
fulfilling the commitments noted in the LMIA application;
retention of all relevant documents and information related to the foreign workers hiring and employment for period of 6-years from the date the work permit is issued to the foreign worker

At any time, an employer who has hired a foreign worker under either the TFWP or the IMP can be inspected by ESDC or IRCC for any or all of the above conditions. Inspections can be triggered by a reason to suspect non-compliance, previous non-compliance, or random selection.

If there is a determination of non-compliance issued to an employer by ESDC or IRCC, the penalty can range from a warning to bans from the program, administrative monetary penalties (AMPs) of up to $100,000 per violation, suspension or revocation of previously issued LMIAs and publication of the employer’s name and address on a public website with details of the violation(s) and/or consequence(s) https://www.canada.ca/en/immigration-refugees-citizenship/services/work-canada/employers-non-compliant.html.

To determine the monetary penalty that an employer will be levied for non-compliance, violations are divided into three different types. Examples of violations under each type are listed below:

Type A:

Failure to demonstrate that any information provided in a work permit application was accurate during a period of six years (e.g. proposed salary, proposed job title, proposed job duties, benefits information).
Failure to retain any compliance document with cited conditions for six years.

Type B:

Failure to comply with federal and provincial laws relating to employment and the recruitment of employees (e.g. failure to comply with the provincial overtime requirements).
Failure to provide the foreign national with employment in the same occupation and substantially the same, but not less favourable, wages and working conditions as outlined in the offer of employment (e.g. paying less than what was indicated at the time of application).
Failure to provide the foreign national with a copy, in English or French, of the most recent information regarding the foreign national’s rights in Canada.

Type C:

Failure to make a reasonable effort to provide a workplace that is free of abuse.
Failure to show that the company is actively engaged in the business in which the offer of employment was made.
Charging or recovering from the foreign national any fees related to recruitment either before or during the period of employment or the employer compliance fee or LMIA application fee.
Failure to ensure that any person who recruited the foreign national for the employer does not, directly or indirectly, charge or recover from the foreign national the fees indicated.
Failure to report at any time and place specified by IRCC or Service Canada to answer questions and provide documents.
Failure to make reasonable efforts to provide the foreign national with access to health care services when the foreign national is injured or becomes ill at the workplace.

The AMP is ultimately determined based on the employer’s compliance history, severity of the violation and the size of the employer’s business. AMPs can range from $500 to $100,000 per violation up to a maximum of $1 million in a 12-month period.

Bans can range from one, two, five, ten years, or can be permanent.

ESDC and IRCC will give employers an opportunity to retroactively address non-compliance through justifications and employers also have an opportunity to disclose a non-compliance in advance of in inspection. We will share details around these in our upcoming bulletins.

If you have any questions about employer compliance with the immigration legislation, you can reach out to us for assistance. Our Canadian immigration legal professionals can be reached by phone (416-368-1111) or via email: caruso@cilf.ca; bonisteel@cilf.ca; ali@cilf.ca; mukherjee@cilf.ca; garciafialdini@cilf.ca.