• ESDC Cracking Down on Employer Non-Compliance with the Temporary Foreign Worker Program
  • January 30, 2015 | Author: Lori Brienza
  • Law Firm: McLennan Ross LLP - Calgary Office
  • As was widely publicized last week, effective April 24, 2014, the Honourable Jason Kenney, Minister of Employment and Social Development Canada (ESDC), directed officials to establish a moratorium on the Food Services Sector’s access to the Temporary Foreign Worker Program (TFWP). In recent weeks, the Government of Canada became aware of some serious allegations of abuse of the TFWP. In response, officials investigated these matters urgently to determine the facts, Labour Market Opinions (LMOs) were suspended, and employers in question were placed on a public blacklist. Despite these actions, there remain serious concerns regarding the use of the TFWP in the Food Services Sector. As such, ESDC/Service Canada will no longer process new or pending LMO applications for this industry sector until the completion of the on-going review. A list of all affected occupations and job titles has been published online by ESDC.

    In order to crack down on employer non-compliance with the TWFP, the Minister issued three Ministerial Instructions on December 31, 2013, one of which is the ability to issue a Refusal to Process LMOs if there is new information indicating that employing foreign workers in Canada in any portion, sector, region, or occupational group, may have or will have a significant negative effect on the Canadian labour market.

    The Minister also announced on December 31, 2013, that ESDC/Service Canada will have the authority to conduct inspections to verify an employer's compliance with the Immigration and Refugee Protection Regulations (and confirmed in the LMO letter and annexes) for a period of 6 years, beginning on the first day of the period of employment for which the work permit is issued to the foreign worker. Employers should be aware that, when conducting inspections, ESDC/Service Canada has the authority to:

    • Require that employers provide documents to verify their compliance;
    • Conduct on-site visits without a warrant; and/or
    • Interview foreign workers or other employees, by consent.

    Where there are reasonable grounds to suspect non-compliance, ESDC also has the authority to suspend LMOs, temporarily removing the force or effect of an LMO during its period of validity and prior to a corresponding work permit being issued.

    ESDC/Service Canada continues to be authorized to review an employer’s compliance (regarding wages, working conditions, and occupation) by conducting an ECR as part of the LMO assessment at the time of an LMO application, and may now review the 6-year period prior to the receipt of the LMO application (previously authorized to go back two years).

    Best practices for employers to ensure they remain compliant include:

    • Retaining all documents to demonstrate LMO conditions were met from the first day of employment of the foreign worker and up to 6 years after;
    • Contacting ESDC/Service before changing conditions set out in the LMO letter and annexes, even if the foreign worker agrees to the changes;
    • Cooperating with ESDC/Service Canada during investigations and compliance reviews;
    • Working with the advice of your lawyer or authorized third party; and
    • Keeping on top of regulatory updates and changes.

    While there appears to be a growing public concern over TFWs, they remain vital for many employers to maintain and grow their businesses. Ensuring compliance is important to protect employers’ access to this source of labour and to respond to criticisms that may be made (rightly or wrongly) against the use of TFWs.