- Harsher Penalties for Employers Disobeying Foreign Worker Laws
- August 17, 2015
- Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
- Employers with foreign workers under both the Temporary Foreign Worker Program (TFWP) and the International Mobility Program (IMP) who do not obey immigration laws are expected to face harsher penalties as of December 1, 2015 due to the implementation of the Administrative Monetary Penalty (AMP) scheme, which will be administered together by Citizenship and Immigration Canada (CIC) and the Ministry of Employment and Social Development (ESDC). The new penalty structure was introduced due to reports of employer abuses of the programs.
The AMP was published in the Canada Gazette following public feedback to a government discussion paper outlining proposed consequences for noncompliant employers.
Harsher Penalty Structure
Under the AMP scheme, employer noncompliance will be divided into three types of violations, to which CIC and ESDC will assign points based on the severity of the violation and the employer’s noncompliance history. New penalties include bans from using the program ranging from one to ten years per violation or a permanent ban for the most serious violations. The current consequence is a two-year ban. Employers could also face fines ranging from CAD$500 to CAD$100,000 per violation. Fines would be capped at CAD$1 million per year, per employer. Employers with unpaid fines will not be able to file new Labour Market Impact Assessments (LMIAs) and/or work permit applications.
The new penalty structure will not apply to noncompliance that occurred prior to December 1, 2015.
Leniency Offered in Regulations
The regulations offer the following policies for employers, which may provide some relief in case of noncompliance:
- Allowing employers at least 30 days to respond in writing to preliminary findings of an investigation, with the possibility of extensions;
- Allowing employers to voluntarily disclose mistakes and receive a lesser penalty, such as a written warning;
- Allowing employers to enter into payment agreements;
- Allowing penalty exemptions where the noncompliance was the result of good faith or unintentional mistakes in interpretation, accounting, or administration; and
- Posting an online list with only the names of employers who have been fined or banned from using the program, instead of the names of all employers found to be noncompliant, as is now the case.
ESDC has also published an Employer Compliance Guide, which contains best practices for employers with foreign workers under LMIA-based work permits. Employers who employ LMIA-exempt foreign workers under the IMP must adhere to the conditions set out in the “Offer of Employment” form (IMM5802), such as the occupation, annual salary, benefits and work location, as those are the factors that will be examined during a potential audit by officials.
Employers with foreign workers under either the TFWP or the IMP have at least 30 days to contest the findings of an investigation, but once a final determination is made, there is no further appeals process. This would leave legal action as the only viable option for an appeal.
What This Means for Foreign Nationals
Employers should work with their administrative departments to ensure that foreign workers’ records are complete and in order in case of inspection, and that any immigration rules, including ensuring employees are working under the same conditions as outlined in submissions to immigration officials, are strictly followed.
Fragomen will monitor and report on any changes surrounding the lack of an independent appeal process.