Stronger Enforcement and Tougher Penalties
Increasing the Number and Scope of Inspections
Given concerns over abuse of the Temporary Foreign Worker Program (TFWP), the Government is making a significant investment in its TFWP inspection regime.
Despite the fact that the Low Skill TFW Pilot Project was created in 2002, no inspections were done at that time. In recent years, the Government began conducting inspections, and there is now a dedicated team of inspectors for the TFWP at Employment and Social Development Canada (ESDC). Nevertheless, an additional investment into the TFWP inspection regime is required to ensure stronger enforcement.
The Government is massively increasing the number of inspections so that one in four employers using temporary foreign workers will be inspected each year. These inspections will be as a result of tips, employers being deemed high-risk and random audits.
In addition to massively increasing the number of inspections, the Government has recently significantly expanded the authority of inspectors to better catch employers who are breaking the rules. As of December 31, 2013, ESDC and Citizenship and Immigration Canada (CIC) were granted additional inspection powers to:
- immediately inspect complaints of possible rule breaking;
- conduct warrantless on-site visits;
- interview temporary foreign workers and other employees with their consent;
- strengthen the criteria as part of the Labour Market Impact Assessment (LMIA) process by, for example:
- o extending from two to six years the period during which ESDC and CIC can verify the wages, working conditions and occupations provided to previously employed temporary foreign workers at the time of a new LMIA or work permit application;
- compel employers to provide documents for the purposes of verifying their compliance with the rules of the program;
- impose a new condition on employers to make reasonable efforts to provide a workplace free from abuse; and
- ban employers who break the rules.
Under these expanded and strengthened authorities, employers must also keep all documents related to their applications, including recruitment documents like résumés, for six years. This allows the Government to verify whether the employer followed the rules of the program both at the time they applied and after the temporary foreign worker arrived. ESDC is able to compel banks and payroll companies to provide bank records and payroll documents to help inspectors verify that employers are complying with the rules of the TFWP.
The Government has also recently significantly increased the scope of its inspections. In the past inspectors were only able to review whether employers were compliant with 3 of the 21 program requirements. Since December 31, 2013, inspectors can now review all 21 program requirements when conducting their inspections.
The three program requirements inspected prior to December 31, 2013, were:
- Have provided each foreign worker with employment in substantially the same occupation as stated in the offer of employment.
- Have provided each foreign worker with wages that are substantially the same as those in the offer of employment.
- Have provided each foreign worker with working conditions that are substantially the same as those in the offer of employment.
The additional 18 program requirements being inspected since December 31, 2013, are:
- Have provided accurate information in the context of an LMIA application.
- This means that if employers are found to have provided false or misleading information on any part of the LMIA application they will be found non-compliant. This includes all the answers to questions provided on the form as well as more than a dozen attestations.
- Are actively engaged in the business for which the offer of employment was made, unless the offer was made for employment as a live-in caregiver.
- Are in compliance with federal and provincial/territorial laws that regulate employment and recruitment in the province/territory in which the foreign worker is employed.
- Have met any specific agreed-to commitments, as set out on the positive LMIA, made at the time the LMIA was issued in relation to job creation for Canadians and permanent residents.
- Have met any specific agreed-to commitments, as set out on the positive LMIA, made at the time the LMIA was issued in relation to job retention for Canadians and permanent residents.
- Have met any specific agreed-to commitments, as set out on the positive LMIA, made at the time the LMIA was issued in relation to hiring Canadians and permanent residents.
- Have met any specific agreed-to commitments, as set out on the positive LMIA, made at the time the LMIA was issued in relation to training Canadians and permanent residents.
- Have met any specific agreed-to commitments, as set out on the positive LMIA, made at the time the LMIA was issued in relation to development of skills and knowledge for the benefit of Canadians or permanent residents.
- Have met any specific agreed-to commitments, as set out on the positive LMIA, made at the time the LMIA was issued in relation to transfer of skills and knowledge for the benefit of Canadians or permanent residents.
- Have made reasonable efforts to provide a workplace that is free of abuse which includes:
- physical abuse;
- sexual abuse;
- psychological abuse; and
- financial abuse.
- Retain any document that relates to compliance with these conditions for a period of six years, beginning on the first day of employment of the foreign national.
- Report at any specified time and place to answer questions and provide documents.
- Provide any documents required as part of an inspection.
- Attend any inspection that is on premises.
- Give all reasonable assistance to the person conducting the inspection and provide that person with any document or information the person requires.
- Employers of live-in caregivers must also ensure the foreign worker resides in a private household and provides child care, senior home support care or care of a disabled person in that household without supervision.
- Employers of live-in caregivers must also provide the foreign worker with adequate furnished and private accommodations in the household.
- Employers of live-in caregivers must also have sufficient financial resources to pay the foreign worker the wages offered.
Increased Detection of Abuse
The Government launched a Confidential Tip Line in April 2014 for Canadians to report abuse of the Temporary Foreign Worker Program (TFWP). More than 1,000 tips had been received to date.
In addition to the tip line, a new Complaints Web page has been launched to allow the public to submit tips easily and securely online.
The Government will continue to follow up on each and every complaint to make sure that employers who are breaking the rules are caught and face the consequences.
We encourage all Canadians who have concerns or information to call our anonymous and confidential tip line. Any allegation of abuse will be investigated.
To report abuse of the Temporary Foreign Worker Program, contact:
Service Canada Confidential Tip Line
use the Online Fraud Reporting Tool
More Criminal Investigations
Employers suspected of criminal activities under the Immigration and Refugee Protection Act (IRPA) are referred to the Canada Border Services Agency (CBSA). Investigations in the Temporary Foreign Worker Program could lead to charges under the following sections of the IRPA:
- s. 124 – employing a foreign national that is not authorized to work in Canada;
- s. 126 – counselling misrepresentation; and
- s. 127 – misrepresentation.
The CBSA is receiving new financial resources to increase its capacity to investigate suspected cases of offenses by employers under the IRPA. The new financial resources for the CBSA will allow additional criminal investigations to be conducted every year. This will better ensure that employers suspected of criminal activities under the IRPA face the full legal consequences of their actions. There are very serious criminal sanctions including fines and jail time for employers found to be in violation of the IRPA. For example:
- Employers who employ “a foreign national in a capacity in which the foreign national is not authorized … to be employed (s. 124)” can be fined up to $50,000 and imprisoned for up to two years or both.
- Employers who intentionally misrepresent or withhold information or provide false information to contravene the IRPA (i.e. lie on their Labour Market Impact Assessment application about their efforts to hire Canadians) can be fined up to $100,000 and imprisoned for up to five years or both.
Furthermore, employers found guilty of human trafficking can be fined up to $1 million and imprisoned for up to life, or both. These penalties are not only applicable to the employer, but also may be applied to persons who aid or abet individuals in coming into Canada in contravention with the Act.
An example of a case that resulted in a conviction occurred after a CBSA investigation revealed that an individual produced fraudulent employment offers and worked as an immigration consultant without a licence between September 2008 and June 2009. He continued to commit immigration fraud between October 2011 and June 2012 by using several aliases. He purported himself as a representative for a number of Winnipeg-based companies, made fraudulent job offers to foreign nationals and issued forged Government of Canada documents. In October 2012, he was sentenced to four years and six months in prison and also ordered to pay more than $380,000 in restitution.
Improved Information Sharing
The Government is improving its ability to collect and share information between government departments and other levels of government to make sure that employers who break the rules are caught.
The Minister of Employment and Social Development wrote to all provincial and territorial governments requesting that existing information sharing agreements be strengthened, or that new information sharing agreements are quickly concluded where none currently exist.
Better information sharing between the Canada Border Services Agency and other federal government departments will help ensure that EDSC is aware of employers that are not complying with the Immigration and Refugee Protection Act or related Regulations (IRPR), for example are under investigation by a law enforcement agency. Employment and Social Development Canada will not process any LMIAs for employers that are under investigation until the investigation is complete and the employer is found to have not broken any rules.
The federal government is also taking steps to significantly improve the level of information sharing between different levels of government. While the federal government is responsible for determining whether an employer is facing a legitimate labour shortage and is justified in hiring a temporary foreign worker, the provinces and territories have primary responsibility for establishing and enforcing health and labour standards, such as safe working conditions, for all workers, including temporary foreign workers. Provinces also have primary responsibility for laws governing recruiting of workers.
The benefits of information sharing agreements between the federal government and the provinces and territories are clear. For example, employers who violate provincial labour laws, health and safety standards or recruiting laws will face greater scrutiny and oversight from Temporary Foreign Worker Program (TFWP) inspectors as these would be considered high-risk employers. Likewise, the federal government shares information with the provinces and territories on employers who break the rules of the TFWP to allow provinces and territories to follow up and prioritize their investigations on matters, namely labour laws, health and safety standards and laws governing recruiting.
Further, in order to be allowed to employ temporary foreign workers, employers must comply with provincial laws that regulate employment, and the recruiting of employees, in the province in which the foreign national works. Better information sharing between the federal government and the provinces/territories results in the federal government being better informed when employers are in violation of provincial/territorial laws and prevent them from accessing temporary foreign workers.
ESDC has information sharing agreements with Alberta, Manitoba, British Columbia and Saskatchewan. These existing agreements will be strengthened and new agreements will be put in place with the remaining provinces and territories.
The Government will also continue to encourage provincial and territorial initiatives to crack down on unscrupulous recruiters. The issue of legal recruitment is primarily a matter of provincial/territorial jurisdiction and passing on recruitment fees to temporary foreign workers is a violation of labour laws in some provinces. Provinces with existing laws on unscrupulous recruiters are Nova Scotia, Ontario, Manitoba, Saskatchewan, Alberta and British Colombia. The Minister has expressed that all provinces and territories are expected follow suit.
TFWP roles and responsibilities
|ESDC||CIC||CBSA||Province / Territories|
|Issues Labour Market Impact Assessment to employers and conducts investigations.||Assesses applications for work permits submitted by temporary foreign workers, which if granted, authorizes them to work in Canada and can also conduct investigations of employers.|| Determines eligibility and admissibility at the port of entry when temporary foreign workers arrive in Canada and issues work permits.
Also conducts investigations and executes removal orders, as required, under the Immigration and Refugee Protection Act.
| Establish and enforce health and labour standards.
Establish and enforce laws on recruitment.
Blacklist, Suspension and Revocation
If an employer breaks the rules, or is suspected of breaking the rules, of the Temporary Foreign Worker Program (TFWP), Employment and Social Development Canada has the authority to suspend or revoke the employer’s Labour Market Impact Assessment (LMIA). LMIAs are suspended when an employer is suspected of breaking the rules and LMIAs are revoked when, following an investigation, an employer is in fact found to have broken the rules.
Employment and Social Development Canada (ESDC) will not process any LMIAs for employers that are under investigation until the investigation is complete and the employer is found to have not broken any rules.
In addition to revocation, if an employer breaks the rules of the program, they will be banned from the TFWP and fined.
Rationale for suspending or revoking a Labour Market Impact Assessment
What does this mean?
Since early 2014, the names of employers whose LMIAs are suspended or revoked are being added to a public Blacklist website. Beginning in fall 2014, the Blacklist includes the names of any employer who has been suspended as well as any employers who has been found in violation of the TFWP rules and what consequences they face.
In addition, employers found to have broken the rules as a result of investigations conducted by Citizenship and Immigration Canada will now be disclosed on the employer Blacklist. This is another part of the Government’s efforts to improve the clarity, transparency and accountability of the TFWP.
Monetary Fines for Employers Who Break the Rules
Beginning in fall 2014, the Government will impose fines of up to $100,000 (depending on the severity of the offence) on employers who break the rules of the Temporary Foreign Worker Program (TFWP). As part of the Government’s efforts to improve the transparency and accountability of the TFWP, the Government will publicly disclose the names of employers who have been fined and the amount of that fine on the Blacklist.
These new significant fines will help ensure that the TFWP is used as intended — as a last and limited resort when Canadians are not available. These new fines would be in addition to fines that can already be imposed on employers convicted of offences under the Immigration and Refugee Protection Act (IRPA).
The following chart provides examples of the penalties that can be applied based on the nature and severity of the offence; this is not an exhaustive list:
|Breaking the rules of the TFWP||
|Criminal offence under IRPA||
|Criminal offence under Criminal Code||
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