The Temporary Foreign Worker Program and compliance regime
From: Employment and Social Development Canada
Official title: Fact sheet: The Temporary Foreign Worker (TFW) Program and compliance regime
The Temporary Foreign Worker (TFW) Program allows employers in Canada to hire a foreign worker when no Canadians or permanent residents are available, allowing employers to continue to grow and succeed. The TFW Program is continuously evolving to ensure it works for everyone—workers, employers and the Canadian economy.
The Government of Canada takes its responsibility to protect workers and the Program from abuse very seriously. All temporary foreign workers in Canada have the same rights and protections as Canadian workers. The foreign workers who come to our country are important not only to the employers who hire them, but to our economy and the communities where they reside. It is in the best interests of everyone to ensure that they are well treated while in Canada and that everyone is respecting the rules of the program.
Following recommendations from both the Office of the Auditor General and Parliament, and as part of continued efforts to strengthen the compliance regime, unannounced on-site inspections have been introduced. These types of inspections are undertaken in situations where there is a high-risk of non-compliance and the safety of temporary foreign workers may be at risk. Employment and Social Development Canada conducts 2,800 inspections per year, out of over 22,000 employers who receive a Labour Market Impact Assessment (LMIA). Results from current inspections are that over half of employers are initially found non-compliant, but the vast majority take corrective action to address any identified issues.
The easiest way to prevent unintentional non-compliance by employers is to provide clear communications. The Department takes a number of steps to ensure that employers are made aware of the compliance regime and their obligations. Information is provided and outlined in documents such as the LMIA application, the LMIA decision letter, and annexes. Information is also available on the Department's website.
The Department has the authority under the Immigration Refugee Protection Regulations sections 209.5 to 209.9 to review and/or inspect employer compliance activities for the Temporary Foreign Worker Program. The regulations outline when, how and what can be inspected under ESDC's compliance regime. If ESDC suspects criminal activities, the information is forwarded to law enforcement agencies such as the Royal Canadian Mounted Police and the Canada Border Services Agency.
ESDC can conduct administrative reviews and/or inspections for three reasons:
- There is reason to suspect employer non-compliance;
- There has been past employer non-compliance; and
- The employer has been randomly selected.
ESDC can conduct two types of inspections:
- Administrative reviews which are mostly paper-based audits that may include telephone communications with the employer;
- On-site inspections with or without advance notice to the employer. The inspector would go to the employer's worksite to conduct inspection activities which may include interviews with the employer and workers. Follow-ups may be done through telephone or mail.
Inspections for the TFW Program may be conducted anytime within a six-year period beginning on the first day of employment for the foreign worker. It is very important that employers have all documents available for the inspector to review and/or copy including;
- Business license or permit and Business Lease agreement (if applicable)
- Description of duties performed by the temporary foreign worker(s)
- Timesheets indicating hours work, vacation taken etc.
- Payroll statements indicating hourly wage, total hours worked and all deductions
- Proof that wages were paid (direct deposit slips/cancelled cheques/e-transfer/etc.)
- Proof of piecework paid
- Proof of registration or clearance letter from provincial / territorial workers' compensation
- Schedules 100 and 125 of company's income tax return
- Abuse free workplace policy
- Housing inspection report(s) (if applicable)
In the majority of cases, being selected for an inspection or an administrative review will not impact an employer's pending LMIA application. An application will only be held in pending status when there is reason to believe that the health and safety of a foreign worker is at risk. These cases are prioritized by the Department to ensure the protection of workers and to prevent an employer's application from being unnecessarily delayed. Once it is determined that there is no immediate risk, the LMIA will continue to be processed while the inspection is being concluded. Employers can help reduce processing delays by responding promptly to Service Canada requests for information or documentation.
Inspectors can assess up to 21 conditions as outlined in the regulations (see Annex). These range from assessing wages to verifying working conditions including accommodations when provided by the employer.
Upon arrival, inspectors will introduce themselves and explain why they are there and ask about any potential hazards. The Department makes every effort to ensure that inspectors undergo comprehensive training and take necessary precautions to mitigate any risks identified in consultation with the employer, such as biohazard risks, and respect the protocols identified by the employer. Inspectors aim to mitigate any potential disruption to daily business activities and are directed to be aware of and respect other business realities such as sector specific hazards. Service Canada employees are expected to conduct themselves in a professional and respectful manner.
Upon arrival on-site, inspectors will announce themselves to the employer or their on-site representative. In order to verify compliance with Program conditions, as detailed in the positive LMIA, an inspector may:
- ask the employer and any person employed by the employer any relevant questions;
- require that the employer provide documents, examples of which are provided above, and allow the officer to examine the worksite/accommodations provided to the TFWs; note that inspectors may not ask for any document or record if it is not relevant to compliance with program requirements.
- make copies of documents on-site, or require the employer to make copies of documents, or remove documents from the location in order to make copies;
- take photographs and make video or audio recordings of any element relevant to compliance with program conditions;
- require the employer to use any computer or other electronic device in the premises or place to allow the officer to examine any relevant document contained in or available to it; note that inspectors cannot access an employer's computer themselves and conduct a search for relevant documents; and
- be accompanied or assisted in the premises or place by any person required by the inspector; note that inspectors may not enter a private dwelling of an employer without their consent or a warrant.
In order to collect relevant information to verify compliance, inspectors may need to interview the employer, temporary foreign workers or other workers. If required, the inspector will arrange for translation services or have translation devices. Inspectors will interview workers individually or in groups.
If non-compliance is discovered during an inspection, the Department will provide the employer with opportunities to address discrepancies identified during the course of an inspection prior to any final determination. If the discrepancies are not corrected, the Department will notify the employer by letter of the observed violation(s), and potential administrative penalties or bans and provide the employer with one additional opportunity to provide information that demonstrates the issue has been resolved. The result of any inspection will be provided to employers in writing.
The Department's goal is to work with employers to bring them into compliance so that everyone is on a level playing field. This means that investments in the Program's compliance regime shouldn't be considered punitive to employers who don't follow the rules but as an investment in employers who do.
During an inspection, inspectors will verify whether employers have upheld the conditions set out in the positive LMIA letter and annexes. These conditions include:
- Have employers provided each foreign worker with employment in the same occupation as stated in the offer of employment.
- Have employers provided each foreign worker with wages that are substantially the same as those in the offer of employment.
- Have employers provided each foreign worker with working conditions that are substantially the same as those in the offer of employment.
- Have employers provided accurate information in the context of an LMIA application.
- Are foreign workers 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 employers 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 employers 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 employers 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 employers 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 employers 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 employers 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 employers 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 employers made reasonable efforts to provide a workplace that is free of abuse
- Have employers retained 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.
- Have employers reported at any specified time and place to answer questions and provide documents.
- Have employers provided any documents required as part of an inspection.
- Have employers attended any inspection that is on premises.
- Have employers given all reasonable assistance to the person conducting the inspection and provide any document or information the person requires.
- Have employers ensured 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.
- Have employers provided the foreign worker with adequate furnished and private accommodations in the household.
- Does the employer have sufficient financial resources to pay the foreign worker the wages offered.
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