SOCI – Temporary Worker Programs’ Employer Compliance Regime – September 28, 2023

Date: September 20, 2023

Classification:

Department: IRCC

Issue:

Brief overview of the Employer Compliance Regimes

Proposed Response:

• Canadian employers hiring foreign workers on employer-specific work permits are subject to an employer compliance regime to promote safe and fair working conditions for foreign workers and to help prevent program misuse.
• These employers are subject to inspections in both the Temporary Foreign Workers Program (TFWP) and the International Mobility Program (IMP) to verify compliance with regulatory conditions, including compliance with employment standards legislation, providing a workplace free of abuse, and ensuring that the foreign worker is working in accordance with their job offer.
• Non-compliant employers may be subject to consequences which include administrative monetary penalties (AMPs) and temporary or permanent ineligibility from hiring temporary foreign workers under these programs.
• In September 2022 new regulations came into force to further enhance the employer compliance regime by improving protections for temporary foreign workers and strengthening the government’s ability to effectively conduct inspections. Some changes include prohibiting employers from charging and recovering fees associated with the recruitment of foreign workers; ensuring workers receive information regarding their employment rights in Canada; and ensuring workers are provided with a signed copy of their employment agreement.

Contact:
Natalie Clayton
Director General, Case Management Branch
Tel. No.: 343-574-7101
Cell. No.:

Approved by:
Michèle Kingsley
Assistant Deputy Minister, Operations
Tel. No.:

Background:

• Immigration, Refugees and Citizenship Canada (IRCC) and Employment and Social Development Canada (ESDC) are committed to protecting foreign nationals who come to Canada to work. A key element of this commitment is the employer compliance regime that is built into both the TFWP administered by ESDC, and the IMP administered by IRCC.
• The Immigration and Refugee Protection Regulations (the Regulations) provide for several triggers that may initiate an employer inspection: a reason to suspect non-compliance (e.g. a complaint or tip was received); a history of non-compliance; random selection; or triggers made in response to COVID-19 (if there is a communicable disease at the workplace; and if the employer employs a foreign worker who is subject to the Quarantine Act or the Emergencies Act).
• Employers are inspected to verify compliance with regulatory conditions such as:
  • requiring employers to be actively engaged in the business for which the offer of employment was made;
  • complying with laws that regulate employment and the recruitment of employees;
  • providing wages, occupations and working conditions that are substantially the same as those set out in the offer of employment; and,
  • making reasonable efforts to provide abuse-free workplaces.
• Amendments to the Regulations made in September 2022 enhance the protection of foreign workers by setting new employer conditions and improving the ability to hold employers accountable for non-compliance. This includes requirements for an employer to:
  • provide workers with information about their rights in Canada;
  • have a signed employment agreement with their workers; and,
  • make reasonable efforts to provide access to health care services when the worker is injured or becomes ill at the workplace.
• The amendments also expand the definition of “abuse” to include reprisal against a temporary foreign worker and prohibit employers from charging or recovering recruitment fees related to the recruitment of foreign nationals.
• The compliance regime has mechanisms in place to ensure procedural fairness for employers. If potential non-compliance is identified during an inspection, employers are given a formal opportunity to provide additional information to demonstrate their compliance or to justify instances of non-compliance with program conditions. Reasons an employer may use to justify their non-compliance, such as a change in federal or provincial law or an accounting error, are identified in the Regulations.
• Decisions of Compliant with Justification are often accompanied by compensation of owed wages or employment benefits such as vacation and overtime paid to foreign workers by employers.
• Employers who are non-compliant with the regulatory conditions may be subject to consequences, which include AMPs and temporary or permanent ineligibility to access the programs. Factors such as previous non-compliance, the size of the employer, and the severity of the violation are considered when assessing the consequences.
• Administrative monetary penalties range from $500 to $100,000 per violation for a maximum of $1M over a year. A program ban can be one, two, five, ten years or permanent. Should an employer fail to pay their AMP, they are ineligible to access the IMP or the TFWP until payment has been made or they have entered into a payment arrangement with the Government of Canada. An employer who receives a program ban is ineligible to hire foreign workers under the IMP or the TFWP until their ban has ended.
• Once a final decision is rendered, the employer can accept the decision and be bound by it or challenge the decision by submitting an application with the Federal Court seeking its leave to have the decision judicially reviewed.
• A list of all employers who have been found non-compliant and have been issued an AMP and/or a ban from hiring temporary foreign workers is made public on IRCC’s website.