As an increasing number of Canadian employers employ foreign workers, and the Government of Canada is taking an increasingly strict approach in enforcing the rules regulating the employment of foreign workers, the issue of how companies can protect themselves when they buy companies that employ foreign workers is becoming increasingly significant. As well, as explained in detail on the Immigration, Refugees and Citizenship Canada (“IRCC”) website, corporate restructurings, mergers and acquisitions may themselves trigger work permit-related issues for employer compliance. It is accordingly important for all companies that are considering merging with or acquiring another company to consider whether (a) the transaction will result in the need for new work permits for existing employees and (b) whether the company that will be employing these foreign workers will become liable for any non-compliance of the previous entity. Understanding the “Successor in Interest” Concept While the IRCC website is clear that employers become responsible for compliance post restructuring, merger or acquisition, the issue of whether the new employers become liable for previous non-compliance is more nuanced, and depends on whether the new employer has become the “successor in interest” for the portion of the organization where the temporary foreign workers were employed. … Read More
Strict Interpretation of Compliance in the Foreign Worker Program
[The following article appeared in the May edition of The Canadian Immigrant. I have slightly modified it for this blog post.] Back in 2013, Canada’s temporary foreign worker program was rocked by well–publicized stories of abuse. As a result, the Government of Canada introduced a comprehensive compliance regime for employers of foreign workers, and promised to ban companies from being able to hire temporary migrants for two years if they breached the new conditions. In 2015, Canada’s Immigration and Refugee Protection Regulations were further amended to introduce an administrative monetary penalty regime, which would also fine employers for non-compliance. The number of Canadian employers who have either been banned or fined for non-compliance is currently quite small, although both Immigration, Refugees and Citizenship Canada (IRCC) and the Department of Employment and Social Development (ESDC), the two main government agencies that manage Canada’s foreign worker programs, have indicated that the number is likely to grow in the near future, especially considering new funding announced with Budget 2017 to better protect vulnerable workers and to encourage employers to do more to hire Canadians first. On March 23, 2017, the Federal Court of Canada released its first publicized decision on an ESDC decision to … Read More
IRCC Clarifies Non-Compliance in the International Mobility Program
It is imperative that employers hiring foreign workers in the International Mobility Program (“IMP“) understand the consequences of non-compliance. Immigration, Refugees and Citizenship Canada (“IRCC“) has finally published information on its website which summarizes how it will determine when non-compliance has occurred and what the consequences will be. Since December 1, 2015, IRCC has had the legislative authority to apply administrative tools, including warning letters, administrative monetary penalties (“AMPs“) and bans on employers accessing the IMP to certain employers where an IRCC officer has determined that an employer has breached the terms and conditions of participating in the IMP. Breaches that Occurred Before December 1, 2015 It is important to note that the AMP and the bans described below only apply to employer breaches that occurred after December 1, 2015. The penalty to an employer for unjustified breaches that occurred prior to December 1, 2015 is a two-year ban on that employer from being able to hire foreign workers under the IMP. However, while the consequences to an employer for being found non-compliant changed on December 1, 2015, the way in which IRCC assesses whether non-compliance has occurred remains substantially the same. The Administrative Monetary Penalty Regime Under IRCC’s AMP regime, employer non-compliance is divided … Read More
Proposed Regulations Add Teeth to the CIC/Service Canada Employer Blacklist
On June 7, 2013, the Government of Canada introduced regulatory changes which will take soon effect at a date to be determined (the “New Regulations”). The New Regulations will impact all employers of foreign nationals in Canada. Specifically, the New Regulations will impose new conditions on employers and increase the government’s ability to ensure compliance with those conditions. Previous Announcements The New Regulations follow a previous Government of Canada announcement on April 29, 2013, in which it announced the following changes to the Temporary Foreign Worker Program, which will also soon take effect at a date to be determined: The Government of Canada will begin working with employers to ensure that temporary foreign workers are relied upon only when Canadians genuinely cannot fill those jobs; Increasing the recruitment efforts that employers must make to hire Canadians before they will be eligible to apply for temporary foreign workers, including increasing the time span and reach of advertising; Helping employers who legitimately rely on temporary foreign workers, due to a lack of qualified Canadian applicants, find ways to ensure that they have a plan to transition to a Canadian workforce over time; Restricting the identification of non-official languages as job requirements when … Read More