January 31, 2019
There’s no shortage of warnings of a worker shortage in Canada – and the consensus seems to be that it’s only going to get worse. The challenge isn’t isolated to any one Canadian region, business size, corporate structure, industry or occupation. Neither is the solution: Canadian businesses are consistently looking to immigration to help solve the current and looming workplace shortages they face. But attracting and keeping Temporary Foreign Workers isn’t the only challenge Canadian employers face. It can be tough for employers to stay up to speed on changing immigration rules: the federal and provincial and territorial governments are frequently adding new immigration policies and programs, and updating existing ones. For example:
What doesn’t change, however, is the requirement that an employer that hires a Temporary Foreign Worker in Canada comply with immigration laws, or both it and the Worker could face legal compliance enforcement mechanisms – with teeth.
Compliance Enforcement Regime
Canada’s Immigration and Refugee Protection Act (IRPA) makes it an offence to employ a Temporary Foreign Worker in a capacity in which that Worker isn’t authorized to be employed. “Temporary Foreign Worker” generally refers to someone who’s not a Canadian citizen or Permanent Resident, but is legally and temporarily in Canada for the purpose of working, whether under the Temporary Foreign Worker Program (TFWP), the International Mobility Program (IMP), or any other federal or provincial or territorial immigration program. Most employers that employ a Temporary Foreign Worker are subject to legal mechanisms to monitor compliance with the IRPA:
The risks of non-compliance are high for the employer and the Workers.
Employer Non-Compliance Risks. Non-compliant employers face a range of consequences:
Worker Non-Compliance Risks. The consequences for Temporary Foreign Workers who don’t comply with Canadian immigration laws and rules can be equally severe, and include:
5 Key Immigration Law Compliance Best Practices
The IRPA expressly states that, “a person [which can be either a natural person or a corporation] who fails to exercise due diligence to determine whether employment is authorized under [IRPA] is deemed to know that it is unauthorized.” This presumption makes it critical for employers to exercise due diligence to ensure Temporary Foreign Workers are authorized for their employment in order to mitigate their exposure to the risks of non-compliance with immigration law requirements.
Here are five of the key best practices that Canadian employers of Temporary Foreign Workers can implement to help mitigate the non-compliance risks. It bears noting, however: immigration laws and rules are in addition to – and not a replacement for – basic labour and employment laws and principles, all of which continue to apply. These include employment / labour standards laws, occupational health and safety laws, termination notice (including “reasonable notice” or contractual notice) requirements, source deduction obligations and liabilities, and collective bargaining obligations.
Start by knowing the rules that apply to the hiring and the employment of Temporary Foreign Workers – or at least know where to find them.
Key legal sources. The key sources for the laws and the rules that regulate the hiring and employment of Temporary Foreign Workers in Canada are:
Key regulatory bodies. The key government agencies that play a role in the regulation of the hiring and employment of Temporary Foreign Workers in Canada are:
Key rules & processes. Many rules apply when a Canadian employer wants to hire and employ one or more Temporary Foreign Workers. Three of the key ones are:
A critical component of due diligence is to review the Temporary Foreign Worker’s Work Permit, focusing on these key fields to confirm they are complete – and accurate:
Due diligence also entails a review of the LMIA or the Online Offer of Employment, as the case may be and where one is required, for both accuracy and for consistency between it and the Temporary Foreign Worker’s:
Utilizing a well-drafted and properly implemented written employment contract is a best practice for all employers. This applies equally to the employment of Temporary Foreign Workers. Due diligence includes reviewing the employment contract to ensure its terms are consistent with the relevant LMIA or Online Offer of Employment, if and as applicable, including these key terms:
The requirement that employers keep records respecting Temporary Foreign Workers for six years – and the power of ESDC to conduct random audits of those records – means employers need to be prepared; and even though employers of Temporary Foreign Workers under an Open Work Permit aren’t subject to this record maintenance requirement and audit power, it’s still good practice:
Please contact your McInnes Cooper lawyer or any member of the Immigration Law Team @ McInnes Cooper to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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