The Government of Canada has developed a thorough regime to enforce both the Temporary Foreign Worker Program and the International Mobility Program that includes inspections. All employers of foreign workers in Canada need to be aware of their obligations to foreign workers and the inspection process. The consequences of non-compliance can include bans on hiring foreign workers, administrative monetary penalties and, in extreme circumstances, criminal sanctions. The best way to avoid being found non-compliant is to develop best practices well before an audit or inspection commences.
We have extensive experience representing employers who are being inspected by either the Department of Employment and Social Development or Immigration, Refugees and Citizenship Canada. We also help companies develop best practices to ensure that any audit or inspection is as smooth as possible.
Inspections and Audits
During an inspection, a Government of Canada officer will seek to determine whether the employer:
- offered wages that were substantially the same as, and not less favourable than, those provide in any offers of employment;
- provided employment in occupations that were the same as in any offers of employment;
- provided employees with working conditions that were substantially the same as, and not less favourable than, those provided in any offers of employment;
- made reasonable efforts to provide a workplace that was free of abuse;
- complied with federal, provincial and territorial laws which regulate employment;
- was active in the business in which the employer stated they were in in their application to hire a foreign worker; and
- demonstrated that any information that they provided in their employees’ work permit applications, including Labour Market Impact Assessment applications, was accurate; and
- informed foreign workers about their rights in Canada using prescribed methods.
Examples
Some of our recent experiences assisting employers in either responding to audits or inspections and in developing best practices include:
Timesheets
A large Vancouver technology company did not keep handwritten timesheets for its software engineers. After the government auditor required a written explanation for why this was so, we successfully argued that the employees’ paystubs indicated how many hours were worked per week. The employer was found compliant.
Caregiver
A family living on Vancouver Island wanted to help a person who was looking for employment experience. They offered her employment as a Caregiver. The employee was paid in cash, worked somewhat irregular hours and stopped working when the mother in the family went on maternity leave without being provided a record of employment. We successfully argued that the family’s breaches of the offer of employment was justified as it was based on a good faith mistake, and the family avoided being found non-compliant based on this justification.
Judicial Review
An employer reduced their employee's wage below that of what was in a Labour Market Impact Assessment after determining that the employee was unable to perform the position's duties. Service Canada fined the company thousands of dollars after the company refused to pay the employee the difference in wages between what it had paid and what was in the LMIA. The company asked us to seek judicial review, and the Federal Court agreed that the company's decision to pay the foreign worker less than what was in the LMIA was a reasonable business decision, and ordered that the company be found compliant. This is a reported decision, meaning that it is publically available, and the full decision can be found here.
LMIA Fraud
We have also worked with foreign workers and unions to report abuse within the temporary foreign worker program. In one example, we worked with a union to help demonstrate that a company was underpaying its foreign workers and making unlawful deductions. The employees received vulnerable open work permits, and Service Canada initiated an investigation of the company.
Scope of Representation
We are flexible in how we structure the representation of employers in their immigration needs. We offer services on an hourly, flat-fee or portfolio basis, as determined by the employer.
