After receiving much media attention and public scrutiny,
Canada's rules and policies for admitting and processing
temporary foreign workers into the country were recently
overhauled. Then, this past summer, the government announced new
and potentially tougher penalties for employers who violate the new
rules. The new penalties come into effect later this year.
The old temporary foreign worker program has been split into
two: the new Temporary Foreign Worker Program (TFWP), under which
employers can apply to fill positions in Canada with foreign
workers after receiving a Labour Market Impact Assessment
(LMIA) approval and a new set of International Mobility Programs
(IMP) under which no LMIA is required.
While the new TFWP is focused on addressing labour shortages in
specific sectors or niches of the economy, IMP is based in large
measure on reciprocity and on bilateral and multilateral free trade
agreements to which Canada is a party.
The labour market opinions provided under the old system have
been replaced by the more rigorous LMIA under which employers must
indicate the number of Canadians that applied for a given job
opening and the number of Canadians the employer interviewed.
Employers also have to explain why one or more of the Canadians
interviewed for the position(s) in question were not hired.
Importantly, the number of TFWP employees an employer may hire
is capped – employers who employ 10 people or more may not
have more than 10% of their workforce comprised of low-wage
temporary foreign workers, subject to certain transitional
Starting on December 1, 2015, employers who fail to comply with
the new TFWP and IMP requirements will be subject to a new
sanctions regime which includes:
fines ranging from $500 to $100,000 per violation, up to a
maximum of $1 million over one year, per employer;
being banned from accessing the programs for one, two, five, or
ten years or permanently; and
publication of the employer's name on a public list with
details of the violation(s) and sanction(s).
The discretion in applying this broad range of available
penalties will be guided in part by:
the type of violation;
an employer's compliance history;
the severity of non-compliance; and
the size of the employer's business (for financial
In addition, employers will have the opportunity to voluntarily
disclose non-compliance and potentially receive a reduced
consequence, where applicable. Employers will also have a chance to
respond to a Notice of Preliminary Finding with respect to an
alleged infraction and to have the matter reviewed by another
officer before a final determination is made.
With the TFWP and IMP rules having undergone important and
broad-ranging changes and with the new penalties regime about to
come into force, employers considering hiring foreign workers
should ensure that they have a thorough grasp on the new rules and
potential consequences. Timely professional advice and guidance in
that regard can help mitigate employers' exposure to the
potentially severe new penalties for non-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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