Canadian employers have certain responsibilities when hiring foreign workers through the International Mobility Program.
The employer must:
- arrange for workers’ compensation benefits and medical coverage when the worker arrives in Canada, as required by the province or territory;
- make sure that the worker has the necessary work permit (the Social Insurance Number [SIN] that a temporary worker is given is not proof that he or she has a valid work permit);
- comply with the conditions and time limits outlined in the worker’s work permit (employers are legally responsible for ensuring that these conditions are met;
- remain actively engaged in the business that submitted the offer of employment for as long as the worker is employed;
- comply with all federal, provincial and territorial employment laws, including laws about recruiting workers;
- provide the worker with a job in the same occupation that was listed in the offer of employment;
- provide the worker with wages and working conditions that meet or are better than those listed in the offer of employment;
- make reasonable efforts to provide a workplace that is free of physical, sexual, psychological and financial abuse;
- keep any documentation related to the hiring and employment of the worker for a period of six years after the work permit is issued; and
- attend any inspection and provide all requested documentation or information.
Employers may be subject to an inspection by an Immigration, Refugees and Citizenship Canada (IRCC) officer or an Employment and Social Development Canada (ESDC)/Service Canada officer acting on behalf of IRCC.
The purpose of an inspection is to make sure the employer continues to satisfy the conditions set out above, thereby ensuring that workers are not mistreated and ensuring that the International Mobility Program is being used as intended.
There are three reasons an employer could be selected for an inspection:
- there is reason to suspect non-compliance;
- the employer has been found non-compliant in the past; or
- the employer has been selected randomly.
The employer who submits the offer of employment to IRCC to hire a temporary worker will be responsible for meeting the program conditions and may be selected for an inspection at any time after the first day the temporary worker is employed and up to six years after their employment has ended.
Employers who have retained the services of an authorized representative to submit offers of employment on their behalf are still responsible for complying with all inspection activities and requests.
If selected for an inspection, the employer must:
- report at the specified time and location to answer questions;
- provide requested documents as indicated in the letter received; and
- attend any on-site inspections, when requested.
During an inspection, an officer may also enter and inspect any place in which a foreign national performs work and interview any foreign or Canadian workers at the worksite.
Employers who are found to be non-compliant will receive a letter that explains the violation and the resulting penalties (outlined below).
From this point, the employer will have 30 days to respond in writing with additional information regarding the violation, the resulting penalties, or both. This may include justification for non-compliance, as well as any other factor or consideration that the employer feels is important for the officer to know before a final decision is made.
Employers may also ask for an extension beyond the initial 30 days for responding. Extension requests will be considered on a case-by-case basis.
If the final decision is a finding of non-compliance, the employer will receive a final notice, which includes information about the condition(s) violated, how the employer failed to comply, the reason(s) for the decision, the penalties and next steps to take.
Justification for non-compliance
In some cases, non-compliance may be justified. Violations may be justified if they are the result of:
- a change in federal or provincial law;
- a change to the provisions of a collective agreement;
- a major change in economic conditions that directly affects the business of the employer,
- an error made in good faith by the employer, such as an unintentional administrative or accounting mistake, and the employer later made efforts to correct it for any workers who were affected;
- an exceptional and unforeseen event (ie. natural disaster); and
- other similar situations.
During an inspection, and before a final decision of non-compliance is made, the employer should submit information and supporting evidence that explains how the non-compliance is justified to IRCC. If the officer finds the justification acceptable, the employer may avoid being found non-compliant.
New regulations for employers found non-compliant came into effect on December 1, 2015.
Employers who were found non-compliant for a violation that occurred before December 1, 2015 had their name and address added to a list of employers who failed to comply with the conditions. Employers on this list are not be able to hire temporary workers through the Temporary Foreign Worker Program or the International Mobility Program for a period of two years starting on the date the decision was made.
Employers who were found non-compliant for a violation that occurred on or after December 1, 2015 could face a range of consequences. These are determined on a points system that considers:
- the type of violation;
- compliance history;
- the severity of non-compliance;
- the size of the the business (for financial penalties only); and
- whether the employer voluntarily disclosed information about possible non-compliance before an inspection was initiated.
Possible penalties may include:
- monetary penalties ranging from $500 to $100,000 per violation, up to a maximum of $1 million over one year;
- a ban of one, two, five or ten years, or permanent bans for the most serious violations;
- the company’s name and penalty published on the list of employers who failed to comply with the conditions (when the employer has received a monetary penalty and/or a ban);
- work permit applications associated with the business being refused; and
- previously-issued work permits associated with your business being revoked.
Employers who think they may have violated the conditions of the International Mobility Program are encouraged to take necessary actions to become compliant and to voluntarily disclose this information to IRCC. IRCC will determine if the information received is relevant and credible, and will assess the severity of the possible violation. IRCC will then determine if an inspection is necessary. Not all disclosures will lead to an inspection.
For a disclosure to be accepted by the officer, the disclosure must be complete and, at the time the disclosure is made, the employer must not already be the subject of an IMP inspection or any other enforcement action related to an offence under the Immigration and Refugee Protection Act.
If an inspection is conducted after a voluntary disclosure and the employer is found non-compliant, the employer may face a reduced penalty or no penalty at all. In such cases, IRCC will consider a number of factors to determine if the employer qualifies for a reduced penalty, including:
- the completeness of the disclosure;
- whether the disclosure is truly voluntary (i.e. the employer is not already the subject of an inspection or enforcement action);
- the severity of the impact of the violation on the foreign worker;
- the severity of the impact of the violation on Canadian workers or the Canadian economy;
- the timeliness of the disclosure; and
- the employer’s history of voluntary disclosures.
Employers may benefit from a voluntary disclosure only if the violation occurred on or after December 1, 2015.