Further Consequences to Employers for Immigration Non-Compliance

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Background


Since June 2014, the government has introduced various measures to ensure higher standards for, and better compliance with, Canada’s Temporary Foreign Worker Program (TFWP). Measures introduced include:



  • The realignment of recruitment requirements based on salary rather than NOC Code [NOC is the National Occupational Classification – a dictionary of occupations organized by levels of job sophistication]

  • The imposition of a ‘transition plan’ requirement for high wage occupations in a Labour Market Impact Assessment (LMIA) application, to show how the employer will transition the position from the foreign worker to a Canadian. Such plan is to be reviewed for compliance if a later LMIA is sought for the same position.

  • An increased numbers of inspections and audits.



The government has now announced yet another measure by which it seeks to enforce compliance with the TFWP. Effective December 1, 2015, it will begin imposing ‘Administrative Monetary Penalties’ (AMPs) for non-compliant employers.


Administrative Monetary Penalties


As the name suggests, the government will begin imposing monetary penalties for employers who fail to comply with their immigration/labour market obligations under the TFWP. The program will be administered by Employment and Social Development Canada (ESDC), who oversee the TFWP.


Employers must be careful to recognize that TFWP requirements include both direct foreign worker issues such as providing the salary for which a work permit was approved, but also some less obvious requirements such as ensuring that a workplace is free from physical or sexual abuse.


Though rather complex, we summarize the system for imposing the penalties as follows:



  1. Violations are broken down into three types: A, B, and C.

    • Examples of Type A violations:

      • Failure to maintain required documents for 6 years

      • Failure to attend an inspection when required



    • Examples of Type B violations:

      • Failure to hire or train Canadians if that was a factor in work permit issuance

      • Failure to comply with recruiting regulations (which often require that no employee be required to pay for his/her recruitment)



    • Examples of Type C violations are:

      • Failure to be actively engaged in the business under which the employment offer was made

      • Failure to make reasonable efforts to ensure that a workplace is free from abuses (including sexual, financial, physical, etc.)







  1. For each violation, the adjudicating officer assesses points within a range, depending on his/her opinion of the severity of the violation. Note that level of severity is different than the violation type as set out above.The severity ranges are:

    a. 0 to 6 points: for violations regarding labour market considerations

    b. 0 to 3 points: for failure to make reasonable efforts to remedy or minimize an issue

    c. 0 to 10 points: for violations involving one of the disallowed abuses



  1. The officer assesses additional points depending on whether the violation is a first, second, or subsequent violation.



  1. With all the points accumulated, the officer goes back to reference the total points assessed against a table which breaks down points as against whether violations are Type A, B, or C. The table prescribes the monetary penalty for the points assessed in each of violation types A, B, or C. The maximum amount per violation at this time, is $100,000.




For Example, a portion of the chart reads as follows:


 





























Points Type A-Lrg. Bus. Type B-Lrg.Bus. Type C-Lrg.Bus.
0 or 1 $0 $0 $0
2 $750 $1000 $2000
3 $1000 $2000 $10000

 



  1. Some further, but no less important notes:

    • Where one violation impacts multiple employees, it will be considered as multiple violations

    • Employers will be permitted 30 days to respond to initial findings

    • Inspectors are given the authority to report to other government agencies, unrelated violations or legal breaches  that they uncover in the course of their investigations (e.g. human rights matters)

    • Penalties do vary depending on the size of the business; small employers, defined as those with fewer than 100 employees or less than $5M in annual revenue, may face smaller penalties, depending on the violation type, and the point level

    • Though we focus here on the monetary penalties, note as well that ineligibility periods to hire more foreign workers have also been increased, depending on the number of points assessed (based on a different chart). An employer may even be permanently barred from hiring another foreign worker

    • Violations can relate to non-LMIA work permits as well as LMIA based work permits (e.g., if an employer is violating a provision relating to an Intra-Company Transfer, that is no less an issue than a situation based on an LMIA)






What Employers Should Do


It is clear that Canadian immigration/TFWP compliance requirements continue to grow ever stricter. It is further clear that the chance of being inspected is increasing. Employers cannot take the chance of failing to comply with the relevant requirements. Taking these newest measures together with the already existing requirements, it is imperative that employers remain compliant.


Employers should, at the very least,



  1. Review all current documentation relating to each foreign worker (or foreign workers generally)

    • This would include documentation that may not name the employee specifically, e.g. a company abuse policy



  2. Establish a procedure/system to ensure ongoing compliance with the regulations.




Canadian employers hiring foreign workers cannot afford to take for granted the compliance provisions implemented by the Canadian government.


The information in this article is for general purposes only, and not intended as legal advice for any particular situation.











This post originally appeared on Kranc Associates. Reprinted with permission.






About The Author














Benjamin A. Kranc

Benjamin A. Kranc is senior principal of Kranc Associates, a leading Canadian corporate immigration law firm. He has many years of experience assisting clients in connection with Canadian immigration and business issues. Ben is certified by the Law Society of Upper Canada as a Specialist in Immigration Law. He is also on the ‘Who’s Who Legal’ list of foremost practitioners in Canadian corporate immigration, as well as rated as AV Preeminent® in a Martindale-Hubbell peer review. Ben has spoken at numerous conferences, seminars, and information sessions – both for professional organizations and private groups – about issues in Canadian immigration law, and has also taught immigration law at Seneca College in Toronto. In addition, Ben has written extensively. He is the author of a leading text on Canadian immigration law entitled “North American Relocation Law” (Thomson Reuters) and contributing immigration author to the “The Human Resources Advisor” (First Reference Books). Ben can be contacted at (416) 977-7500 ext. 226, or bkranc@kranclaw.com.






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