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Last month, an Edmonton company was fined $36,000 for employing
temporary foreign workers ("TFWs") who were not
authorized to work in Canada. As well, a Vancouver man was fined
$8,000 for telling a group of TFWs to state they were coming to
Canada to visit when they were coming for work. With over a dozen
legislative, regulatory and operational changes affecting companies
with TFWs coming into effect this year, is your HR department
compliant?
What are the consequences of
non-compliance?
As these two court cases demonstrate, courts will fine both
employers and employees acting on the employer's behalf.
However, there are other penalties that are more dramatic.
Under the law, an employer who employs a TFW (persons who are
neither Canadians nor Canadian Permanent Residents) who is not
authorized to be employed in Canada can face fines of up to
$50,000, as well as a term of imprisonment of not more than two
years. In addition, a person who counsels an individual to
misrepresent themselves (e.g. an HR employee who counsels TFWs to
lie or mislead immigration) can face fines of up to $100,000 and a
term of imprisonment not more than five years.
On an administrative basis, failure to comply with immigration
laws can also result in an employer being prohibited from hiring
any TFWs in the future and can result in employers being listed on
a publicly available employer ineligibility list.
Is your company compliant with employment and
recruitment laws?
In immigration applications, employers must establish that they,
and any representative acting on their behalf, have been compliant
with relevant employment and recruitment laws before hiring any
TFWs.
The requirement to show compliance is quite broad. Currently,
Citizenship and Immigration Canada has not clarified which
employment law violations result in the refusal of a work permit
(the document that allows a TFW to work in Canada). When these
regulations were first proposed in 2009, the Canadian Bar
Association expressed concern that a minor provincial Health Act
violation (like an employee not wearing a hairnet) could be the
basis of determining noncompliance as a similar situation occurred
under Alberta's Immigrant Nominee Program. As a result, it is
possible that violations of laws unrelated to the work a TFW will
do can result in the refusal of a work permit.
Has your company made sure all employees are legally
entitled to work in Canada?
Compliance also means that an employer must ensure that all
workers are legally entitled to work for them in Canada. In
Manitoba, this also means that TFW recruitment must comply with the
Worker Recruitment and Protection Act and the employer maintains
all necessary records under this legislation.
Has the employer offered substantially the same wages
and working conditions to all TFWs in the past?
The law also requires employers to prove that they have provided
"substantially the same" wages, working conditions and
employment to past or existing TFWs. As a result, employers must
establish that for two years prior to any new application to employ
a TFW, there were no substantial changes to employment contracts of
any of their current or past TFWs.
This requirement does not depend on whether a work permit is
being sought for a new or existing employee. Noncompliance with
respect to one TFW can affect the ability to hire new TFWs.
For instance, if an employer represents that it will hire a TFW
as a mechanic at $25/hour and only pays the mechanic $20/hour, the
employer would fail this test. If, within two years of this
violation, the employer seeks to hire another TFW to be its
company's president, the failure to pay the mechanic the
stipulated wage could result in the refusal of a work permit to the
president.
Stay tuned for Part II in this series "Implementing
Systems to Ensure Compliance".
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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As part of its Economic Action Plan 2013, the Federal Government signalled that it would be taking action in the coming months to reform the Temporary Foreign Worker Program.
On Oct. 1, 2012, USCIS will begin accepting the Form I-129, Petition for Nonimmigrant Worker, filed on behalf of Canadian citizens who are outside the United States and seeking classification as a TN nonimmigrant visa under NAFTA.
