In June 2014 the Canadian government announced its overhaul of the Temporary Foreign Worker Program (“TFWP”), splitting the TFWP into two distinct programs: those involving Labour Market Impact Assessment (“LMIA”) based work permits, and those involving LMIA-exempt based work permits. The TFWP now manages the LMIA based work permits, and Citizenship and Immigration Canada (“CIC”) now manages the International Mobility Program (“IMP”), or LMIA-exempt based work permits. At the time of the overhaul, the government announced there would be changes to the penalties and consequences for employer non-compliance with either the TFWP or the IMP.
On July 1, 2015, the government released detailed regulations regarding the new employer penalties and consequences for non-compliance with the TFWP and the IMP. These regulations do not come into force until December 1, 2015 and are not retroactive, however, they have been published early in order for employers to fully understand the consequences of their non-compliance before they come into effect.
The existing framework does not provide any proportional range of consequences to the varying degrees of non-compliance. Under the existing framework, the only available consequence for non-compliant employers following an inspection is a two-year ban from the program. Therefore, in many circumstances employers were found to have actually been benefiting financially from their non-compliant activities.
In order to bring a proportionate response to the compliance framework, Employment and Social Development Canada (“ESDC”) and CIC developed a system of Administrative Monetary Penalties (“AMPs”), warning statements, and modified the number of years that an employer may be banned from the program from only 2 years to 1, 2, 5, 10 and even a permanent ban for those cases of extreme non-compliance.
The AMP system is dependent on the classification of the “type” and severity of the violation(s) found and on the total number of points assigned as a result of an employer’s violation of the program. There is a certain level of discretion provided to the investigating officer to determine the severity of the violation. As a result, monetary fines will range from $500 - $100,000 per violation. In the event of multiple violations, the fine issued will not be more than $1,000,000 for all violations combined.
Further, if an employer’s violation is assigned 6 or more points, depending on the “type” classification, whether it is a Type A, B or C violation, they may be banned from the program for 1, 2, 5, or 10 years, or possibly permanently if the violation is found to be egregious enough.
It should also be noted that in the event of the finding of a violation, employers will be permitted to provide evidence or information for the reason for the violation in an effort to reduce the penalty. Employers may also be eligible for a reduced penalty in the event of self-reporting their non-compliance with the program(s). Again, discretion is given to the investigating officer to make this determination.
What does this mean for you as an employer? It means proportionate responses to varying degrees of violations. More specifically, it means more prudence will be necessary on the part of employers to avoid any of the above penalties. Proportionality means that seemingly lesser offenses that an employer may have been able to get away with in the past could very likely result in a penalty under this new regime.
We recommend that ANY changes in employment for any temporary foreign worker, whether they are under the TFWP or the IMP, be discussed with immigration experts, prior to the change taking affect in order to ensure employers remain compliant and avoid these new penalties. As a reminder, employers are required to maintain your records for 6 years, and may be investigated at any point in that time period.