Over the last several years, the Canadian government has increased scrutiny on the activities of employers and foreign workers to ensure compliance with Canadian local and federal agreements regarding the hiring of temporary foreign workers. Instructions and amendments to the Immigration and Refugee Protection Regulations were announced recently by the Citizenship and Immigration Canada (CIC) and Service Canada. These regulations further the goals of compliance requiring employers of foreign workers to provide evidence that they have complied with the terms and conditions of the positions offered to the foreign workers. These terms and conditions include abiding by the information provided regarding job title, job responsibilities, wages, job locations and working conditions.
The increased scrutiny and protectionist stance on the part of the Canadian government is similar to practices employed by both the United States and the United Kingdom, among others. Indeed, with increased activity involving companies transferring employees to the country under the improper visa classifications and/or without proper work authorization, it is no surprise that more countries are increasing scrutiny and enforcement to ensure compliance with local immigration laws. In particular, Canada has faced increased scrutiny within the restaurant industry. (For examples of recent immigration enforcement see the following: U.S., UK.)
Canada penalties for non-compliance range from revocation of work permits to fines and imprisonment. Specifically, an employer can be fined up to $50,000 CAD or face imprisonment for up to two years if the foreign worker is employed in an unauthorized capacity. The imprisonment term can reach up to five years for offenses related to misrepresentation or withholding of material facts. In addition, non-compliance may have a negative impact on already valid LMOs and work permits. Underlying LMOs may be revoked by Service Canada, which would result in any work permits issued pursuant to that LMO being revoked. Work permits obtained as a result of misrepresentation may also be revoked. Spouses and dependents who accompanied a foreign worker and obtained status through their relative will also lose status if the foreign worker’s work permit is revoked.
An employer’s ability to obtain work permits for any foreign worker will also be in jeopardy. If the employer is found to be in violation of the regulations, it may be ineligible to participate in the Temporary Foreign Worker Program for two years. As a result, it may be issued denials on any future and pending LMO applications, or previously issued LMOs. In addition, the employer’s name, address and ineligibility will be published on an online “Ban List”.
In light of the increased scrutiny and enforcement of regulations related to the employment of foreign workers, it is important for employers to take steps to ensure their compliance with all rules and regulations. Employers should take precautions to ensure they abide by the terms and conditions of any underlying job offers and take appropriate steps should any of the conditions change in the course of employment.
As mentioned in last week’s post, employers should also be weary of “stealth business travel”. This issue arises when employees enter the country claiming to be on a business trip, when they will actually be performing work. Business trips are typically limited to meetings, attending conferences, consultations, etc. If an individual performs work while claiming to be in the country on a business trip, then they are illegally working in the country, which can result in some of the same penalties outlined above as well as other issues involving labor and employment and tax law. Other employees travel intermittently to Canada for valid business purposes. During their travels, they remain an employee of and continue to be remunerated by their home office. The problem arises when a business traveler overstays the limit of a business trip, and thus triggers local laws within Canada. Under local law, the employee may be then considered a locally based employee, which means Canadian immigration and payroll regulations would also apply. Consequently, employers of these business travelers are subject to the immigration and employment laws and regulations of Canada, including any penalties associated with non-compliance. This is true regardless of whether the employer considers the individual to be an employee of the Canadian company or not. In addition, employers should be mindful of the heightened scrutiny in all areas of the law involving the employment of foreign workers and consult legal counsel to ensure their foreign workers have the appropriate work authorization.