LMO Q&A: Who Can Be the Employer Contact? (OPS/BE-001)

My decision to publish e-mail exchanges between immigration representatives and Citizenship and Immigration Canada which I received through Access to Information Act requests has been met very favourably by blog readers.

I am now expanding this to internal correspondence between Temporary Foreign Worker Program officers at Service Canada and Business Expertise Consultants.

The following is an exchange between a Service Canada officer and a Business Expertise Consultant regarding who can be the employer contact in a LMO application.  My thoughts on the exchange are at the bottom of the reproduction.

Please note that what I have reproduced below should not be viewed as legal advice.  I obtained a copy of this internal Service Canada question and answer through an Access to Information Act request (the “ATI”).  The reproduction of question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.  (I have decided not to reproduce the names of the Service Canada officers involved.) Please e-mail me if you want a copy of the original question and answer contained in the ATI.

Background:

███████ has a 3’d party ███████ and his mailing address is ███████. This ID has 26 pages of activity in FWS, the last of which is a confirmation on 2011-10-12.

This 3’d party ID has a note dated, 2008/11/21, which states, “November 20, 08 Phone call to ███████ Employer states that the signature on the application, third party representative form and employment contract was not hers.”  The SF note for the file in question, SF ███████ states, “Spoke to ER Nov 20, 08. After attempting to verify application details the employer, ███████ stated that she was unaware of the employment contract and any of her responsibilities, including providing airfare ensuring reasonable and proper accommodations for the workers. I asked her if she had signed the application form, third party representative form and the employment contract. She stated “No”. I then asked her what her signature looked like and If she used the full last name of ███████ she stated that you can clearly see the full when she signs her name. All three forms, the application, third party representative form and the contract had a clearly printed signature reading ███████ which is not how the employer signs her name.”

I was unable to find the SROA, “Supplementary Record of Assessment” on the Index to see if there is any other documented information recorded about this 3rd party. As of April 15, 2011, officers have been instructed to refuse applications if the 3rd party is involved in recruitment for the ER and is not licensed by the province – per AFTA requirements. This 3rd party is in our system as an individual.  This could possibly explain why there has been no 3rd party activity since 2011. He is not a member of the ICCRC either.

SF # ███████ have ███████ listed as the ER contact, and it is his signature on the applications, as the “Accounts Officer”. The mailing address on the applications is ███████ SF ███████ also has his signature as the employer on the ER/EE contract.

I searched ███████ name as an ER contact in FWS, and found two ER IDs:

ER ID ███████ (with the 2 files above pending), and

ERID ███████

ER ID ███████ is a new ER and the first application ███████ when the requested business documents were not received.  The second application ███████ yesterday, with the following SF note:

“2013/03/06-spoke withER contact ███████ to verify file on Feb 28th and verified that contact is the accountant who represents other companies on other LMOs; requested copy of signed authorization letter from ER within next 24 hours; as of today; letter not recv’d
Unable to complete ER verification as contact did not know information and does not work solely for ER but has own accounting office and is ER’s accountant.
PWR (Wic Median)= 20.00; ER wage= 17.50-not met; on app or ads

███████

Letter mailed to business; not faxed to ER contact to ensure ER gets copy of ███████ ·BMoisan”

Per this officer’s discussion with ███████ it appears that he is representing himself as the employer on more than the two IDs I was able to find in my FWS search.

Question/Issue:

If ███████ is an “Accountant”, is he able to list himself as the employer contact on applications?  If he is able to be the employer contact, is he also permitted to sign the application as the employer? Is he permitted to represent himself as the employer on the Employer/Employee contract and sign that as well?

If any/all of the above is permitted, should we not be asking for something in writing from the employer which states that he is authorized to hire foreign workers on their behalf? I don’t believe such a letter would support the employer/employee relationship which is to exist before an LMO is approved. Does the employer contact have to be an employee of the company which is hiring the workers? If so, can we ask for payroll records verifying that he is an employee?

If ███████ is not an employee, and it is determined that he cannot in that case be considered the employer contact or have signing authority on an application or ER/EE contract could notification be given to all officers with Instructions on how to proceed with applications listing him as the ER?

BE Consultant Response:

QUESTION/ANSWER

1) If ███████ is an “Accountant”, is he able to list himself as the employer contact on applications?

Yes, ███████ can be listed as the employer contact, provided he is employed by and considered an employee of the company. For example on the company payroll an ER/EE relationship exists. However, if he is contracted by the company to provide accounting services, the required ER/EE relationship to act as an employer contact does not exist.

2) If he is able to be the employer contact, is he also permitted to sign the application as the employer?

Yes, if he is a bona fide employee and has signing authority, he is permitted to sign the application.

3) Is he permitted to represent himself as the employer on the Employer/Employee contract and sign that as well?

The contract asks for the following information:

The Employer: ——–

Business Name (if a Business, provide key business contact under last name/first name):

Last Name : _________________ ___

First Name:——————

Address: ____________________________ _

Phone Number:———————–

FaxNumber: ———————–

Email Address:——————

“The Employer” when referring to the contract is” The business Name”. If he is representing himself as the “key business contact, yes, as long as he is a bona fide employee and has signing authority, he is permitted to sign the contract as well.

4. If any/all of the above is permitted, should we not be asking for something in writing from the employer which states that he is authorized to hire foreign workers on their behalf? I don’t believe such a letter would support the employer/employee relationship which is to exist before an LMO is approved.

Yes, if a conversation with the contact leaves doubt or concerns, you can ask for a letter on company letterhead signed by the Owner/President of the company stating that the contact indicated on the application is an employee and employed by (on the payroll, not contracted) the company and has signing authority.

5. Does the employer contact have to be an employee of the company which is hiring the workers?

Yes, the employer contact does have to be an employee (on the payroll) of the company.

6. If so, can we ask for payroll records verifying that he is an employee?

No, we are not permitted to ask for payroll records for verification of employer contact; however as stated above, if concerns arise during a conversation with the contact, you can request a letter signed by the Owner/President verifying the contact’s employment situation with the company.

7. If ███████  is not an employee, and it is determined that he cannot in that case be considered the employer contact or have signing authority on an application or ER/EE contract – could notification be given to all officers with instructions on how to proceed with applications listing him as the ER?

No, formal notification for instruction on future applications would not be communicated out by Business Expertise; however, Program Delivery can determine if the information and direction should be shared with their staff.

CONSIDERATIONS 

If it is determined that ███████ is not employed by the company and cannot act as the employer contact, the employer could appoint him as a Third Party Representative. The appropriate documents (Appointment of Representative and Annex) would have to accompany a new application. The new application and contract would have to be submitted with the appropriate employer signatures in place and would be assessed accordingly.

Generally, the employer contact does have to be an employee (on the payroll, not contracted) of the company. There may be a rare case where a non-arm’s length relationship exists between two entities and an employee of one of the entitites may act as the employer contact for the other entity (e.g. parent/subsidiary where parent company manages HR for subsidiary.)

Additional guidance may be sought in such cases.

RECOMMENDATION

To have a conversation with the contact ███████ to determine if he is an employee.

Example of questions:

  1. Is he an actual employee (on the payroll) of the company
  2. Does he still act as a Third Party
  3. Does he have his own company
  4. Does he do the accounting for any other companies? The application indicates that he is an “Accounts Officer”.

If the conversation leaves doubt; request a letter signed by the Owner/President verifying ███████  employment situation (on payroll or contract) with the company and signing authority status.

In an era of increasing compliance enforcement, it would be in my opinion very foolish if an employer wanted someone who wasn’t an employee to be the employer contact in an Application for a Labour Market Opinion.  Employer contacts can bind an employer to numerous commitments when they submit Labour Market Opinion applications.

I always tell employers that the employer contact person should be:

  • the employee of the company who has the most knowledge about the hiring and recruitment process of the company; and
  • someone who is senior enough that management has confidence in the employees ability to not “really mess things up.”

Both are equally important.


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