Section 1 Background
Section 2 New Requirements
Section 3 Considerations/Consequences/Possible Action Items for Employers
1 – Background
In September 2022, the government of Canada implemented updated compliance procedures for employers hiring foreign workers in Canada. Hiring foreign workers is done either through the Temporary Foreign Worker Program (TFWP), or the International Mobility Program (IMP).
- The TFWP essentially requires an employer to justify the need to hire a foreign worker over a Canadian (including a permanent resident), due to, for instance, and most notably, a labour market shortage. This in turn, with few exceptions, requires advertising and other procedures to seek approval. An approval under this program is based on the securing of a positive Labour Market Impact Assessment (LMIA) through Service Canada operating on behalf of Employment and Social Development Canada (ESDC).
- The IMP allows an over-ride of the TFWP, whereby an employer can hire a foreign worker without an LMIA, based on various legal avenues afforded to employers. Examples are intra-company transfers, professionals under certain international agreements, and situations of ‘reciprocal benefit’.
Already in place prior to September 2022 were requirements to, among other matters, provide to IRCC or ESDC, as applicable, offer of employment information including wages, and working conditions. The requirements may have differed slightly depending on whether it was a TFWP or IMP work permit, but in either event, employers could later be subject to inspection to ensure compliance with the terms of employment upon which a work permit was ultimately granted.
2 – New Requirements
In September 2022, further requirements were introduced. These can be summarized as follows.
Firstly, in terms of items that must be dealt with at the time of offer/hire:
| Provision | Program | Required Action | Notes |
| Provide pamphlet re rights in Canada | IMP, TFWP | Employers must provide workers with information about their rights in Canada (in English or French, as the worker chooses) AND must also make the information available to all employees in English and French.
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The information can be found at: https://bit.ly/427fc1A (English), and https://bit.ly/3VfWYc0 (French). |
| Provide employment agreement | TFWP | Employer must provide employees with a signed copy of their employment agreement on or before the first day of work.* | In English or French, as applicable, and consistent with the occupational duties, wages, and working conditions as set out in the approved offer. |
| Provide employment agreement | IMP | Employers must attest through their Employer Portal that they have provided the foreign worker with a copy of their employment agreement. [In practice, they must therefore have provided this prior to so attesting.]* | In English or French, as applicable, and consistent with the occupational duties, wages, and working conditions as set out in the offer of employment. |
| Health Coverage | TFWP | Employer must secure health insurance for any period where a foreign worker is not covered by a provincial health plan. |
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* Note that though there may be in any given case, a general offer of employment or employment agreement between employer and employee created in the ordinary course of business, it is important that the ‘offer’ in question cover the terms as agreed to for the purpose of the LMIA/LMIA exemption, as applicable. Practically speaking therefore, an employer would wish that an applicant sign the ‘offer’ that contains the content of the information provided to ESDC (for an LMIA) or IRCC (for a non-LMIA), work permit. It is the terms therein that will be important to ensure are captured for the purpose of the compliance contemplated herein.
In addition to the foregoing:
- Employers may be required to verify that they have made reasonable efforts to maintain an abuse-free environment
- ESDC (re TFWP) and IRCC (re IMP) will now have the authority (subject to Privacy Act considerations), to seek information from third parties to confirm compliance (e.g. payroll companies)
- Employers must confirm (based on, and in a manner applicable to, the relevant program) that they are not recovering, directly or indirectly, from a foreign worker, any fees related to recruitment, LMIA processing, or compliance.
There are of course other details, but employers must ensure that these guidelines are being followed.
3 – Considerations/Consequences/Possible Action Items for Employers
Some further notes:
- IRCC/ESDC have already been conducting inspections on these provisions, and the time frames on which the inspection occurs may include time frames before the requirements were put into place. That is, as one example, if a foreign worker was hired in August 2022, IRCC may still ask if this person was provided the ‘Know Your Rights’ pamphlet or a copy of the signed offer. [In essence, it seems that the requirements are being implemented retroactively.] Presumably, if the person continued to work beyond September 2022, they want the employer to update the compliance to account for that, even if they started before.
- As such, employers should ‘back track’ and ensure that all regulations are met now, even if it relates to someone hired pre-implementation.
- The issues apply even if the employee came for just a brief stint and returned to their home country. The employee need not have ‘moved’, in a more permanent sense, to Canada, for these issues to be pertinent.
- A finding of lack of compliance upon government inspection may lead to severe repercussions, including monetary penalties, blacklisting, and the loss of right to hire foreign workers.
Employers should be aware of these issues, and may wish to conduct an internal ‘audit’ to ensure that they are up to date. Anticipatory and/or remedial action may be required. Advisable activities to mitigate the impact of potential non-compliance (and discovery of same through government inspection) may include:
- taking appropriate remedial actions (e.g. providing ‘Know Your Rights’ information),
- filing a ‘voluntary disclosure’ if a defect in compliance is discovered, or in some cases,
- filing for a work permit amendment.
Employers, whether Canadian or foreign, should take these issues into account, and ensure they are compliant.
Kranc Associates is available to review your company’s records and actions to ensure that these matters are considered, and that the impact of a possible finding of non-compliance upon inspection is mitigated. If you wish to engage us for this purpose, please contact us at the email address above, and we will be pleased to discuss the issues, options, actions, and costs.
The information in this article is for general purposes only, and not intended as legal advice for any particular situation.