Five compliance tips (for employers of foreign workers)
If you employ an individual who holds a work permit to authorize their work in Canada, you likely have various obligations to adhere to and can face significant consequences if your business is found to be non-compliant with these obligations.
In particular, some work permits, referred to as “employer-specific” permits, will list a particular company, role, and location in which the permit holder can work. Employer-specific work permits are obtained through one of two main routes: The Temporary Foreign Worker Program (“TFWP”) or the International Mobility Program (“IMP”).
A business that employs an individual based on an employer-specific work permit will have additional immigration obligations as born out of its use of these programs to assist their employee in obtaining said permit. You can better understand these programs and how employer obligations arise by reviewing one of our prior articles, Employer Immigration Compliance Obligations.
Employers must take steps to ensure they remain in compliance with any commitments they have made to Employment and Social Development Canada (“ESDC”) / Service Canada or to Immigration, Refugees and Citizenship Canada (“IRCC”) in order to avoid the potentially serious consequences associated with non-compliance. These commitments arise when an employer submits a Labour Market Impact Assessment (“LMIA”) through the TFWP or Online Offer of Employment (also known as an Employer Compliance Submission) through the IMP.
The following are five tips to help ensure your company complies with its obligations under the TFWP and/or IMP:
Five compliance tips
- Conduct periodic, randomized internal audits
An internal audit can help verify if your business is compliant with its obligations under the TFWP or IMP. For example, such an audit can aim to verify whether the salaries your business is paying to any foreign worker employees are consistent with the figures listed in any LMIA applications or Employer Compliance Submissions made by the company in relation to those individuals. Audits can also have the objective of verifying whether job duties have been altered from those originally outlined, and whether your foreign worker employees are working the hours you set out, among other checks and balances.
Any conditions of work outlined in an LMIA or Employer Compliance Submission should be verified and confirmed periodically, and you should immediately seek advice from Immigration Counsel if you notice any deviations between your committed-to conditions of work and reality.
- Introduce a foreign worker policy and/or training for managers
While a business’ Human Resources group is often well informed on the limitations of employing foreign workers who hold employer-specific work permits, other individuals in the organization, particularly those in supervisory roles, often inadvertently make changes to the work conditions of foreign worker employees – particularly to their job duties – without realizing the impact this can have. To the extent you can educate your workforce through a formal policy, orientation, or other training session that they should not alter the work or work conditions of an individual on a work permit without seeking approval, this can go a long way to avoid misunderstandings that lead to non-compliance.
- Review the “prevailing wage” annually
Individuals who hold LMIA-based work permits and some types of LMIA-exempt work permits are required to be paid at least the “prevailing wage” for their occupation in their work location. The prevailing wage is generally the greater of the median wage outlined by Canada’s Job Bank for a certain occupation in a certain location or the wage paid to employees with similar skills and experience in the same job and work location. The Job Bank wage data is updated annually, so it is important that employers monitor the prevailing wage to ensure their foreign employees are sufficiently remunerated, where required.
- Keep detailed records for six years
Employers should be ready to respond to an Employer Compliance Review or audit by maintaining detailed records for any foreign workers they employ, including any documentation necessary to demonstrate that the employer did in fact pay the workers and provide the amount and type of work as indicated. Contracts, work permits held during the employment period, LMIAs or Employer Compliance Submissions, pay stubs, and time sheets are some examples of documents that you should be able to produce easily for any foreign worker employed.
Further, compliance inspections can be conducted up to six years after an individual was issued a work permit, and therefore records should be kept at least for this period of time.
- Ensure job offers are contingent on ability to work
As noted, the general obligation of all employers in Canada is to only employ individuals who have proper status to work in Canada. When issuing a job offer to an individual, it is important to ensure the offer is contingent on the individual’s ability to obtain legal authorization to work in Canada, including by obtaining any necessary work permit.
Further, the individual not only requires authorization to work in Canada, but authorization to work for the specific employer making the job offer and to work in the manner outlined in the job offer.
Finally, the offer should also be contingent on the employee’s ability to maintain legal status to work in Canada. If a work permit later expires without the individual obtaining extended work authorization, it should be made clear that the employment relationship will end.
Our immigration group would be pleased to help you better understand your obligations as the employer of one or more foreign workers, and to further discuss implementation of the above recommendations.