How to avoid financial penalties & ban from hiring.
If you’re a business owner or recruitment manager in Canada, reading this will help you understand some of your obligations when you hire temporary foreign workers. And if you’re an employee or a TFW, you’ll learn about your rights.
Hiring TFWs can provide numerous benefits to Canadian employers, but it also comes with a set of serious responsibilities and obligations. In the event of a violation, the employer may have to pay penalties up to $100,000 per violation, to a maximum of $1 million per year. They may receive a permanent ban from the TFWP and IMP. Their previously issued LMIAs may be suspended, and their business information may be published on the Immigration, Refugees and Citizenship Canada’s website with details of the violation(s) and/or consequence(s), which can be very embarrassing and damaging for the reputation of the business.
The list of obligations that I’ll be sharing is not an exhaustive list and the law may change from time to time. So this information should not be construed as legal advice. To discuss your requirements and your case, we can schedule a consultation. Link shared in the description or please contact me using the email.
I’m assuming you already know the difference between the temporary foreign worker program and the international mobility program. The temporary foreign worker program requires the employer to go through the process of an LMIA approval before the employee can apply for a work permit. Whereas, the IMP is LMIA exempt. So I will skip some of the basic stuff about LMIAs. But do keep in mind that you must save all documentation related to the whole process for a period of 6 years.
So, here’s are some of the key obligations. The reference of these obligation is the Canadian Immigration & Refugee protection regulations, sections 209.1 and 209.2
- Firstly, the employer must be actively engaged in business in respect of which they made the job offer.
- The employer must comply with federal or provincial employment laws. This also includes laws related to the services of the third party they utilized e.g. if the recruiter is required to be licensed in the employer’s province, they must use a licensed recruiter only. If the employer is using an immigration consultant, they must be licensed by the College of Citizenship and Immigration Consultants of Canada, like I am for example.
- The employer must give the employee a signed copy of your employment agreement as well as the Canadian government’s official documents about the to the foreign national’s rights in Canada. Both of these must be provided on or before the first day of work.
- Here’s a very important point. The employer cannot recover the recruitment fee, the cost of LMIA advertisement or LMIA application, either directly or indirectly from the temporary foreign worker. And the employer must ensure that if they used the services of a recruiter to hire a foreign worker, that recruiter also did not charge any recruitment fee, or LMIA fee, directly or indirectly. So if the employer is hiring a foreign worker to score money from the foreign worker, and the foreign worker is paying that fee. Both the employer and the employee are violating the Canadian immigration & refugee protection regulations. And the consequence can be severe.
- The employer must not do anything that prevents the employee for complying to the requirements of the Emergencies Act or the Quarantine Act e.g. if they employee is required to quarantine themselves for a period of time, the employer must provide them wages. Btw, if you’re finding this video useful, you’ll definitely benefit from joining my mailing list where I’ll share weekly updates related to Canadian immigration and other key information. You can join by sending an email to [email protected] with the subject “newsletter” or clicking the newsletter link above or below in the description.
- The next obligation is that the employer must get and pay for private health insurance that covers the employee’s emergency medical care until they are eligible for provincial or territorial health insurance coverage. Abd the employer must make reasonable efforts to give the employee access to health care services if they are injured or become ill at the workplace.
- The employer must ensure that they provide employment to the employer in the same occupation, same wages and same working conditions as mentioned in the offer of employment. So, if the employer wants to reduce the foreign workers wages or working hours per week, this may be a violation.
- This brings us to the point about abusive workplace and vulnerable workers. The employer must make reasonable efforts to provide a workplace that is free of abuse. For example, the employer cannot force the employee to do overtime if that’s not included in the employment contract. The employee cannot be forced to work when they are sick or injured. The employer cannot confiscate the employee’s passport, work permit or threaten them in any way. If the temporary foreign worker is experiencing or at the risk of experiencing abuse in the context of their employment, they can request IRCC for an open work permit. If they are issued an open work permit, they don’t have to work for their abusive employer and can work for any other employer. But more on this in another video. Subscribe and turn on the notifications if you’d like to learn more about this. From an employer’s perspective, if an employee claims abuse and applies for an open work permit, and the application is approved, there are great chances that the employer will have to go through a compliance audit.
- And the next obligation is regarding, you guessed it, employer compliance audits. If an employer is chosen for an employer compliance audit, they must be ready to report at the specified time and place to answer questions and provide any documents that are requested. The inspector may enter their office premises with a few exceptions e.g. if their office is a private dwelling and it’s not a home support worker or home child care provider employer. The investigating officer may record video or audio, and may request to inspect the employer’s computer and other digital devices.
These were some of the main obligations. This is not the exhaustive list. If you want to receive the checklist of all obligations an employer has while hiring a temporary foreign worker, or if you’d like to review summary of all reasons for which an employer was fined or banned for non-compliance, you can download that report.
If you’re an employer who needs help with an LMIA or LMIA exempt program, or work permit, feel free to get in touch.