All Canadian employers who have hired foreign workers under the Temporary Foreign Worker Program (TFWP), International Mobility Program (IMP), work permit under free trade agreement category (NAFTA) are subject to compliance inspections by the federal immigration ministry.
With a focus on compliance and enforcement, Canadian employers need to adhere to the terms and conditions of the work permits or the Labour Market Impact Assessment, as applicable.
Administrative Monetary Penalties (AMPs), a regulatory compliance method is becoming increasingly common. Under this penalty mechanism, monetary penalties can be imposed on the Canadian employer charged with any non-compliance incidence. The regulatory body can go ahead and impose the penalty without giving any proceeding benefit to the flagged Canadian employer.
The process of the Administrative Monetary Penalties (AMPs)
This regime maintains and encourages Canadian employers to abide by the TFWP and IMP laws and requirements. Few violations classified as non-compliance include:
- Improper record keeping and documentation
- Not abiding by the terms of the LMIA (Labour Market Impact Assessment)
- Not complying with the LMIA-exempt work permit requirements
- Not complying with the terms of employment as per the work permit of the foreign worker
- Any other non-compliance under the terms of employment with the foreign worker
Each non-compliance incident is treated as an individual violation. Penalties imposed are cumulative with a maximum of $1 million.
This regime awards points to each non-compliance incident to establish the penalty amount. Factors on which points are given include:
- Employer size
- Earlier incidences of non-compliance of the employer
- The extent of the benefit obtained by the employer from the non-compliance
Penalties imposed on the defaulting Canadian employers under this regime can include one or many of the below:
- Monetary penalties
- Notice barring the employer from hiring any more foreign workers ever
- Employer name and violations list can be made public on the relevant website
Violations are generally identified by routine inspections and also when the employer makes a new LMIA application during inspections.
The inspections can be carried out without any warrant, on-site and include employee interviews and reviewing of employee and payroll records. Employment and Social Development Canada (ESDC) carries out the inspections on usually 20-25% of the total Canadian employers hiring foreign workers.
An employer gets 30 days to respond to the non-compliance notice and can invoke many reasons for the same. After the employer is finally indicted on the non-compliance, they are not eligible for any further LMIAs or any new work permit applications, until the penalty has been paid off. The only option for the Canadian employer to contest the final ESDC decision is to file for a judicial review in federal court.
Risk Concerns for Indicted Employers
All inspectors have the right to share the findings with the relevant legal authorities. This exposes the Canadian employers to associated risks regarding other laws and statutes.
Canadian Employers need to ensure compliance with both the program needs, work permit rules and associated Canadian human rights and employment legislation.
We can Help
The well-informed immigration lawyers and consultants at Nanda & Associate Lawyers will assist you in clarifying the duties and obligations of employers with regards to foreign worker employment.
We will impart sound legal advice to help you establish a suitable audit mechanism to manage foreign workers and be on the right side of the law.