Context

In the current economic climate, business immigration and global mobility have become important factors in the Canadian economy.

More and more companies are using temporary foreign workers to address labour shortages. In recent years, the number of temporary foreign workers in Canada has continued to grow. According to statistics published by Citizenship and Immigration Canada ("CIC") in October 2012, this number has increased from about 100,000 in 1988 to over 350,000 in 2012.

Recently, the Canadian government has decided to tighten the rules for employers who hire temporary foreign workers. As an employer, it is important that you understand and respect your obligations. Failure to do so could lead to serious consequences for your company, its directors, and its officers.

Outlined below are several employer obligations as well as the associated consequences of non-compliance.

Obligations

Compliance with the terms of employment: When hiring a temporary foreign worker, the employer sets out the terms of employment. These must be respected in precisely the same manner as they would for a Canadian employee. However, in cases of temporary foreign workers, any changes to the terms of employment – including an increase in salary or a change in the number of hours worked – must be reported. In addition, officers may even require the employer to provide evidence that the original terms of employment have been respected in the course of the two preceding years.

Hiring a foreign worker without the requisite authorization: The Immigration and Refugee Protection Act (S.C. 2001, c. 27) (the "Act") prohibits any employer from hiring a foreign worker who does not possess the requisite authorization to work in Canada. It also places the onus on the employer to verify the status of every foreign worker that it employs. In other words, should the employer fail to exercise due diligence in determining whether employment is authorized, it will be deemed to know that it is not authorized. Verifying the status of any foreign worker before making an offer of employment is critical.

Misrepresentation: The Act prohibits any person, including an employer, from communicating information - either directly or indirectly - that is false or misleading or from making any erroneous representation that could lead to the Act being administered incorrectly. Therefore, it is important that any statement, form, or document produced by an employer be accurate and true, including but not limited to the offer of employment, a form, or any communications exchanged with officers.

Consequences

The consequences of any non-compliance on the part of the employer could be significant. Initially, any request submitted with respect to a TFW could be refused. In addition, the employer may be prohibited from hiring additional temporary foreign workers for a period of two years following the breach of their obligations. The name of the employer can also be included on a list of employers ineligible to hire foreign workers that is published on CIC's website.

Depending on the nature of the breach, companies, directors, and officers can also be sentenced to a fine of up to C$50,000 or C$100,000 and imprisonment for a term of up to two or five years.

Conclusion

Prior to hiring a foreign worker, employers should ensure that they are well informed of their rights and obligations. These remain in effect both throughout the hiring process and after its completion. The consequences of any breach could drastically affect both you and your business.

This article was originally published in the November 2013 edition of InfoCPQ, a monthly newsletter intended for members of the Conseil du patronat du Québec.

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.