All employers of momentary overseas staff in Canada want to grasp how the employer compliance regime works. Each Immigration, Refugees and Citizenship Canada (“IRCC”) in addition to the Division of Employment and Social Improvement (“ESDC”) usually audit and examine the employers of overseas staff to be sure that they’re complying with the Non permanent International Employee Program and/or the Worldwide Mobility Program (that are the 2 major applications by way of which overseas nationals can work in Canada). Each ESDC and IRCC have indicated that about 25% of employers can count on an inspection in any given 12 months.
Most of those inspections and audits begin with the employer receiving a letter from the Authorities of Canada informing them that they are going to be examined on a large number of things, together with whether or not they have employed the overseas nationwide within the job that they have been imagined to, whether or not they paid the wages that they have been imagined to, whether or not the employer complied with legal guidelines regulating employment, whether or not they maintained information and whether or not they took cheap efforts to supply a office that was freed from abuse.
I’ve embedded beneath the usual employer compliance letter that’s despatched out initially of an audit.
employercomplianceaudit
Penalties of Non-Compliance
There are a number of penalties to Canadian employers of non-compliance with the Non permanent International Employee Program and/or the Worldwide Mobility Program, together with attainable fines and prohibitions on hiring overseas staff. The fines can vary from just a few hundred {dollars} to as much as a most of $1,000,000.00 in a calendar 12 months. The bans can vary from just a few months to a everlasting ban.
The Authorities of Canada maintains what is often referred to as an Employer Blacklist on its web site. The Employer Blacklist supplies instance of the sorts of fines and prohibitions that employers who’ve been discovered to be non-compliant can count on.
Sources of Data
Whereas some employers of overseas staff intentionally breach program situations, most don’t, and are merely unaware of program necessities. As such, it’s important that the employers of overseas staff both search authorized illustration to verify compliance, or familiarize themselves with the knowledge within the following three hyperlinks:
IRCC web site on what constitutes compliance
IRCC web site on assessing penalties of non compliance
IRCC web site on assessing severity of a breach
Steps
An Inspection or audit usually begins with an employer receiving a normal kind from the federal government advising them that an Inspection is about to happen. It usually seems like the next:
Audit1
Greatest Practices
Because the Inpsection proceeds IRCC or ESDC will enter the outcomes right into a doc that resembles this.
Audit2
Audit4
Audit3
If non-compliance is discovered, the Employer could also be requested to supply justification for the non-compliance. Acceptable justification will end in an employer not being fined or banned from utilizing this system.
AuditJustify
There are a number of steps that employers can take to attenuate the danger of being discovered non-compliant.
These embody:
1 Be certain that accountability for overseas staff is centralized.
It’s important that corporations wouldn’t have people making commitments to overseas staff that the individuals within the firm who’re liable for the hiring and employment of overseas staff are unaware of. Whereas the Authorities of Canada has taken steps to attenuate the danger of this, resembling by way of the creation of the Employer Compliance Portal, it’s shocking how steadily particular person managers inside an organization are capable of commit the corporate to enforceable phrases and situations with the federal government. As such, it’s crucial that Human Assets make it clear that any affords of employment, immigration nominations and adjustments to phrases of employment of overseas staff undergo them.
2. Don’t change any phrases of somebody’s employment with out first consulting a lawyer or checking the IRCC / ESDC web site to find out if the change would represent a breach.
Employers are sometimes stunned at what constitutes a breach of the Non permanent International Employee Program and the Worldwide Mobility Program. For instance, the IRCC web site states the next about when a promotion will end in non-compliance.
As nicely, raises, failure of a brief overseas employee to acquire everlasting residency, adjustments within the location of employment and the failure of an employer to retain copies of ads can all result in findings of non-compliance.
3. Have somebody do an occasional spot audit of paystubs to be sure that an worker is being paid in accordance with the knowledge that was supplied to the Authorities of Canada when that individual was employed.
This can be a service that now we have just lately began providing, and it has labored wonders in serving to employers spot breaches that they could not have been conscious of. It’s notably useful for small employers, who might not be conversant in how additional time is calculated, how averaging agreements work, provincial guidelines for domestics, holidays, the requirement to maintain timesheets and different technical necessities that may be tough. The service is definitely relatively easy, and includes a “mock audit” utilizing the identical questionnaire as what the federal government makes use of, and which is embedded above. Certainly, I’d think about that many of the employers who have been discovered non-compliant with the Non permanent International Employee Program or the Worldwide Mobility Program might have averted such a discovering if they’d completed a mock audit.
4. Guarantee that all facets of a overseas employee’s employment is documented on the time that it happens. This contains paystubs, hours of labor, variations to employment, and so on.
One of many largest errors employers make isn’t correctly maintaining information. Employers should cooperate and supply paperwork as requested with the intention to exhibit compliance. In Farms v. Canada (Employment and Social Improvement Canada), for instance, an ESDC Inspector penalized a farm as follows:
Primarily based on data supplied by the employer, the inspector decided that 20 Non permanent International Staff had deductions of $200-$250 throughout the first 6 weeks of employment. The employer said they supplied fee advances nonetheless the employer couldn’t exhibit that the fee advances had been made. Additional, there’s a requirement within the Seasonal Agricultural Employee Program employment contract to have a written settlement with the overseas staff for any additional deductions being taken from pay cheques. The employer couldn’t present any proof of written agreements with the overseas staff, confirming the overseas employee’s consent to the deductions. The inspector couldn’t verify the existence of fee advances or the consent for the additional deductions immediately with the Non permanent International Employee(s) as they’re not in Canada.
5. Test whether or not the corporate has harassment insurance policies, and if not, develop them.
Many employers are unaware that in British Columbia it’s necessary for employers to have written harassment and bullying insurance policies. The failure to have such a coverage can result in a discovering that the employer didn’t take steps to supply a office that’s free from abuse.
In penning this publish, my aim is to not deter corporations from hiring overseas staff. In immediately’s labour market, it’s rising more and more important to take action. Nevertheless, it’s crucial that corporations absolutely perceive the foundations earlier than they achieve this, and implement finest practices as early as attainable.
6. Test work allow situations.
Most work permits have situations on them. You will need to evaluation them fastidiously. The next PDF incorporates inner IRCC Q&A which exhibits varied situations of how employment location may be restricted.
Employer Compliance Location
A201803522
Jurisprudence
In Millenium Pacific Greenhouses Partneship v. Canada (Employment and Social Improvement), 2022 FC 960, Justice Norris dominated that it was unreasonable for an Inspector to find out that ” merely due to an employment relationship, the staff would defend the employer’s model of occasions, whether or not it was true or not” and that “data offered by the corporate in its personal defence can’t be discovered much less credible merely on the idea of the bald assertion that it’s “in [the company’s] finest curiosity” – in different phrases, that it’s self-serving.” The Court docket additional said:
this Court docket has discovered it essential to intervene when determination makers have diminished the worth of proof for that reason alone and with out significant consideration of different components doubtlessly affecting the burden of the proof (e.g. being in line with different credible proof, being corroborated in materials respects, and so forth). See Tabatadze v Canada (Citizenship and Immigration), 2016 FC 24 at paras 4-7, and the circumstances cited therein; see additionally Aisowieren v Canada (Immigration, Refugees and Citizenship), 2020 FC 305 at paras 15-16 and the circumstances cited therein.
In Luigi’s Concrete Ltd. v. Canada (Employment and Social Improvement), 2024 FC 1446, Madam Justice Pallota affirmed that corporations can’t cut back a overseas employee’s wage on the idea that they obtain financial advantages elsewhere, like free lodging. The Court docket additionally reiterated that justification requires that an worker be justified.
In Northern Tropic Houses Ltd v. Canada (Employment and Social Improvement), 2025 FC 458, Justice Zinn dominated that in sure circumstances the underpayment of wages to a overseas nationwide may be justified with out the necessity of the corporate to compensate the overseas nationwide.
Rep Q&A
Here’s a query about banking hours and LMIA compliance.
Banking Hours
