Employer compliance inspections in Canada are conducted by Immigration, Refugees and Citizenship Canada (IRCC) and the Department of Employment and Social Development (ESDC). Inspections are carried out to ensure that employers are complying with the conditions imposed under the International Mobility Program (IMP) and the Temporary Foreign Worker Program (TFWP).
Inspections may be initiated for various reasons, including suspicion of non-compliance, random selection, or past non-compliance. During an inspection, various factors are verified, such as the employment offer, LMIA decision letter, annexes, and compliance with federal and provincial employment laws. Non-compliance can result in fines and prohibitions on hiring foreign workers, and the government maintains an Employer Blacklist, which lists non-compliant employers.
Employer compliance inspections are conducted to ensure that employers are adhering to the relevant regulations and laws. In Canada, these inspections can involve employers answering questions, providing documents, and allowing officers to examine relevant premises and documents.
Inspections may be triggered by suspicion of non-compliance, previous non-compliance, random selection, or other specific reasons. The purpose is to verify compliance with federal, provincial, and territorial laws, as well as the conditions set out in the offer of employment and the LMIA decision letter.
The consequences of failing an employer compliance inspection in Canada can be severe. Non-compliance with the conditions of the International Mobility Program (IMP) and the Temporary Foreign Worker Program (TFWP) can result in fines, prohibitions on hiring foreign workers, and placement on the Employer Blacklist. Employers may be required to pay penalties and demonstrate compliance before being allowed to hire foreign workers again. Inspections may be initiated for various reasons, and violations can be identified during routine compliance reviews or on-site inspections. Employers found in violation may face financial penalties and other enforcement actions. It’s important for employers to ensure compliance with all relevant regulations to avoid these consequences.
The most common violations found during employer compliance inspections in Canada include:
1. Non-compliance with record-keeping requirements and failure to adhere to conditions laid out in a Labour Market Impact Assessment (LMIA) approval or offer of employment, including payment of certain wages and providing certain working conditions.
2. Failure to provide the most recent information to foreign nationals about their rights in Canada, and provide access to health care services when the worker is injured or becomes ill at the workplace.
3. Failure to conform to the conditions under inspection without acceptable justification, which can result in fines, penalties, and other enforcement actions.
These violations can lead to penalties, fines, and even prohibitions on hiring foreign workers. It’s crucial for employers to ensure compliance with all relevant regulations to avoid these consequences.
If an employer is found to be directly responsible for abusing a foreign worker during an employer compliance inspection in Canada, the employer will be deemed non-compliant and will be subject to applicable consequences. The employer may be considered responsible in situations such as when the employer, a supervisor, or a third party acting on the employer’s behalf has personally abused a foreign worker. In certain circumstances and depending on the severity of the violation, work permits of foreign workers working for employers found non-compliant with any of the conditions following an inspection may be revoked as per the Ministerial Instructions. Penalties for non-compliance can include fines of up to $100,000 per violation, to a maximum of $1 million per year, and a permanent ban from the Temporary Foreign Worker Program (TFWP) and the International Mobility Program (IMP) for the most serious violations.
To challenge an inspection and resolve issues in Canada, employers are given the opportunity to provide a response to non-compliance allegations or findings of an inspection and to explain any discrepancies while potentially relying on “good faith errors” that were administrative in nature or resulting from human error. Employers facing bans or penalties will continue to be posted online on a “Non-compliant Employer” list in an effort to publicly discredit these employers. Inspectors who identify violations of other statutes and regulations, such as human rights and employment standards legislation, are permitted to share these findings with the relevant regulatory authorities.
Employers of foreign nationals should ensure that they are compliant with not only program requirements and any conditions set out in LMIA approvals, but also all other relevant employment, human rights, and other legislation.
To challenge an inspection and resolve issues with ESDC and IRCC in Canada, the following steps can be taken:
1. Review the Inspection Report: Thoroughly review the inspection report to understand the issues identified.
2. Gather Evidence: Collect evidence to support your position, such as employment records, communication with the foreign worker, and any other relevant documentation.
3. Respond to the Findings: Provide a response to the non-compliance allegations and explain any discrepancies. You can also provide evidence to show that the violations were not intentional and that corrective actions have been taken.
4. Request a Re-inspection: If the issues have been addressed, you can request a re-inspection to demonstrate compliance.
5. Seek Legal Advice: If the matter is complex or if you are facing serious consequences, consider seeking legal advice to understand your rights and options.
It’s important to address the issues identified in the inspection report and take corrective actions to ensure compliance with the relevant regulations.