Employer compliance inspections

This section contains policy, procedures and guidance used by Immigration, Refugees and Citizenship Canada staff. It is posted on the Department’s website as a courtesy to stakeholders.

Under the International Mobility Program (IMP), all employers, apart from those exempted from the employer compliance regime, who make an offer of employment to a foreign national referred to in subparagraph R200(1)(c)(ii.1) of the Immigration and Refugee Protection Regulations (IRPR) must comply with the conditions imposed under section R209.2. An employer may be inspected to ensure they have met the imposed conditions.

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Overview: Employer inspections under the IMP

Employers who submitted an offer of employment for which a work permit was issued to a foreign national on or after December 31, 2013, may, under section R209.5, be inspected for compliance with the conditions set out in the IRPR. An inspection may be initiated from the first day of employment for which a work permit is issued up to a maximum of 6 years thereafter.

Inspections are administrative assessments of whether an employer has met the conditions required in the IRPR [R209.2 and R209.4]. If, on the basis of information obtained during an inspection, Immigration, Refugees and Citizenship Canada (IRCC) determines that an employer violated a program condition and was not justified in doing so [under subsections R209.2(3), R209.2(4) or R209.4(2)], IRCC must inform the employer of the finding and, as per section R209.997, add their name to the public list, which will state the violation and the penalty.

The penalty that is administered depends on the date the violation was committed. For offences committed before December 1, 2015, employers will be banned for 2 years from accessing the IMP and Employment and Social Development Canada’s (ESDC’s) Temporary Foreign Worker Program (TFWP). For violations committed on December 1, 2015, or after, employers may receive a warning letter, an administrative monetary penalty and/or a ban from accessing the IMP or TFWP for a specified time.

Depending on specific circumstances, employers found non-compliant with any of the conditions following an inspection may also have work permits for foreign nationals in their employ revoked as per the Ministerial Instructions.

Circumstances for an employer inspection

Under section R209.5, there are 3 circumstances (triggers) for an inspection: known past non-compliance, random selection and reason to suspect.

Known past non-compliance

An employer who has previously been found non-compliant with IMP or TFWP conditions.

Random selection

Verification of employer compliance based on a random selection model.

Reason to suspect

Receipt of information relating to an employer using the IMP and giving an officer reason to suspect non-compliance with 1 or more of the conditions set out under section R209.2.

Information may come from a variety of sources, including but not limited to the following:

  • an allegation or complaint received in the form of one of the following:
    • a call, letter or email received from a member of the public or a stakeholder (for example, through tips or complaints websites)
    • voluntary disclosure (IMM 5964) by the employer (see voluntary disclosure for employers)
    • information received from ESDC, the Canada Border Services Agency or another IMP partner
    • information received through diplomatic channels or parliamentarians
    • information received from a non-governmental organization, union or similar organization
    • information received from a province or territory
  • information reported in the media (for example, print, radio, television and social media)

Any information received by an officer regarding a situation that could trigger an inspection should be referred to the Case Management Branch (CMB), Investigation and Exceptional Cases Division for potential initiation of an inspection.

Initiating the inspection or verification

To initiate an inspection, the CMB may request that ESDC/Service Canada (SC) conduct the inspection activities on IRCC’s behalf, or the CMB will conduct the complete inspection.

If IRCC conducts the inspection

The CMB will send the employer a letter indicating the following:

  • the reason for the inspection, including the inspection trigger and program condition where there is a concern
  • a request for documentation that will provide proof of compliance
  • a request for the employer to provide an indication of their justification as per subsection R203(1.1) if applicable, and proof of the justifications if they believe they are non-compliant
  • a deadline for submission of the documentation

If ESDC conducts the inspection upon IRCC’s request

IRCC will refer the inspection to ESDC/SC as per the service delivery agreement.

Inspection conditions imposed on employers [R209.4]

Inspections can involve employers having to answer questions and provide documents [R209.6], the examination of documents [R209.7] and, potentially, on-site inspections [R209.8], including interviews with foreign workers or other employees (with their consent).

Under section R209.4, for the purposes of inspections, employers must make reasonable efforts to do the following:

  • report at any specified time and place to answer questions and provide documents, or ensure that a representative is available to provide assistance
  • provide any documents that are requested to verify compliance with specific conditions (employers will be instructed to redact all personal information that IRCC is not authorized to collect)
  • attend any inspection or ensure that a qualified or delegated employee attends any inspection, unless the employer was not notified of it

Note: An officer may consider that an employer has made reasonable efforts if the employer has done the following:

  • met any of the conditions above that are relevant to a particular inspection
  • cooperated to the greatest extent possible during an inspection

On-site inspections

On-site inspections will be conducted by ESDC/SC on behalf of IRCC. Inspections transferred for on-site visits after being initiated by IRCC will be referred as per the service delivery agreement.

Employers are required to give all reasonable assistance to personnel conducting the inspection, including the following:

  • allowing the officer to use copying equipment or providing copies to the officer as requested
  • allowing the officer to take photographs or make video or audio recordings (with written consent)
  • allowing the officer to examine anything on the premises that is relevant to the inspection

Employers may be found non-compliant if they refuse to cooperate during an inspection.

The following are guidelines (a non-exhaustive list) indicating in which circumstances an ESDC/SC investigator could carry out the on-site component of the inspection:

  • when there has been no communication from the employer and the investigator is aware that the business does exist and is operational
  • when there is a lack of communication during the investigation, and the actions of the employer point to avoidance
  • when the investigator has reason to believe that information provided by the employer is not factually accurate, as in the following examples:
    • if an employer provides perfect payroll records after denying having payroll records
    • if evidence suggests that the TFW may be working in a different occupation than what is stated on the offer of employment (for example, an employer attempted to hire a TFW for one position, was denied, and the employer then hired the same TFW for another occupation)
    • if evidence suggests that the employer may have hired the TFW prior to the issuance of the work permit; there is inconsistent information relating to the employment start date
    • if there are safety- or security-related concerns
  • when an allegation of abuse has been received
  • when the investigator deems it necessary during the course of the inspection to include an on-site component

Compliance conditions imposed on employers [R209.2]

The purpose of an inspection authorized under section R209.5 is to determine if an employer who provided an offer of employment under subparagraph R200(1)(c)(ii.1) has complied with the conditions stated in section R209.2. These conditions are imposed automatically on issuance of the associated work permit.

Although the conditions are imposed only for the period of the work permit, compliance with the conditions can be inspected up to 6 years after the work permit is issued. During this period, the following conditions can be inspected:

  1. The employer must remain actively engaged in the business in respect of which the offer of employment was made [R209.2(1)(a)(i)].
  2. The employer must comply with the federal and provincial laws that regulate employment and the recruiting of employees in the province in which the foreign national works [R209.2(1)(a)(ii)].
  3. The employer must provide the foreign worker with employment in the same occupation as that set out in the offer of employment and with wages and working conditions that are substantially the same as, but not less favourable than, those in the same offer [R209.2(1)(a)(iii)].
  4. The employer must make reasonable efforts to provide temporary foreign workers with a workplace that is free of abuse [R209.2(1)(a)(iv)] and, more specifically, free of the following:
    1. physical abuse, including assault and forcible confinement
    2. sexual abuse, including sexual contact without consent
    3. psychological abuse, including threats and intimidation
    4. financial abuse, including fraud and extortion
  5. The employer must be able to demonstrate that any information they provided in relation to an offer of employment under section R209.11 or on request of an officer during the associated work permit application [R200(1)(c)(ii.1)] was accurate [R209.2(1)(b)(i)].
  6. The employer must retain any document that relates to compliance with the imposed conditions [R209.2(1)(b)(ii)].

Assessing compliance conditions

Officers can request specific documents or information or ask the employer to provide whatever documents the employer determines are sufficient as proof of their compliance with the conditions. A list of documents that could be provided as proof is available in Documents that may be used to verify employer compliance.

Upon receipt of the documents and any other information the employer provides as proof of their compliance or justification, an officer will review the documents and information to determine compliance with the conditions.

Employer is actively engaged in the business

To assess whether the employer is actively engaged in the business in which the offer of employment was made, IRCC can request all relevant documentation, including a Canada Revenue Agency business number, business licence or permit and the employer’s relevant income documents.

In addition to a business licence or permit and a relevant income document, IRCC may request in the inspection initiation letter one or more of the following documents as proof of business activity:

  • an attestation by a lawyer, notary public or chartered accountant who is a member in good standing of their respective professional body, confirming that the employer is actively engaged
  • an up-to-date commercial lease agreement
  • a formal letter from a legal business other than the employer’s, confirming the existence of a contract for goods or services being provided

Note: IRCC will not consider attestations or letters submitted from an employee of the company as proof of business activity.

Additional information available to the public may also be used to make a determination on the active engagement in business of an employer who has made the offer of employment to the temporary foreign worker. Information sources include the following:

  • Internet searches (for instance, Google, Better Business Bureau, Industry Canada and Canada 411)
  • provincial websites
  • employer websites
  • Job Bank advertisements

Note: Any extrinsic information (for example, publicly available information or information not provided by the employer) used in making a decision on compliance must be disclosed to the employer before a finding of non-compliance, and the employer must have an opportunity to respond to this information.

Compliance with federal, provincial and territorial employment and recruitment legislation

Compliance with federal, provincial and territorial employment and recruitment legislation is verified up front as part of the work permit application process. For the purpose of inspections, the verification of compliance with federal, provincial and territorial laws should focus only on the employer’s compliance record from the date of the work permit issuance.

Compliance in respect of this condition is focused on any federal or provincial laws that regulate employment and recruitment in the province in which the temporary foreign worker works. This includes, for example, labour law areas dealing with health and safety, unfair dismissal, the right to file complaints, leave, and workplace privacy laws. It also includes recruitment laws that regulate the business of employment agencies and recruiters. More examples are provided in the section below.

Regardless of the triggering event, there are specific types of documentation for any federal, provincial or territorial compliance issue that can or should be checked:

  • proof of registration, where required by provincial or territorial employment or recruitment legislation for employers and recruiters
  • a workers’ compensation clearance letter, declaring that the employer is registered with the workers’ compensation board and has an account in good standing
  • other relevant official provincial or territorial documentation, including any documentation available directly from provinces by way of information-sharing agreements or information available online to the general public

To meet this condition, employers must not be convicted of any offence or be found in violation of any federal, provincial or territorial law governing employment or recruitment from the date the foreign national starts working. In most cases, information about violations and convictions is readily available online (for example, from federal or provincial websites); however, if extrinsic information (for example, website information not provided by the employer) is used, officers must give the employer an opportunity to respond to any allegations before recommending a finding of non-compliance.

Examples of federal, provincial and territorial laws

This is not an exhaustive list. Examples include but are not limited to the following:

Occupation, wages and working conditions

Occupation

The occupation that the foreign worker will hold and the duties they will perform must fall within the description of the National Occupational Classification (NOC) code specified in the offer of employment provided under section R209.11 for the duration of the work permit validity period. If the duties the foreign worker will perform are not in the same NOC code or are inconsistent with what was described in the other main duties listed in the offer, the employer may be deemed non-compliant.

Variance in duties

To assess whether the employer provided the same occupation as that set out in the offer of employment, officers should take into consideration the following factors with respect to variance in job duties (this list is not exhaustive):

  • whether the variation in duties is covered by the same NOC code as that stated in the offer of employment, though those duties may not have been explicitly listed in the offer
  • the amount of time that the foreign worker spent completing the duties listed in the offer versus the variation in duties
  • whether the variation in duties relates to a higher or lower occupation than the job listed in the offer
  • whether appropriate compensation was provided for the time the foreign worker spent completing the variation in duties
  • how close the NOC code associated to the variation in duties is to the NOC code listed on the offer
  • whether the variation in duties is reasonably expected for the position listed in the offer

Promotion or change of NOC code

In cases where the employer has promoted the foreign worker or otherwise changed their duties (for instance, if the offer indicated the worker was a manager but during the validity period of the work permit they ended up working as a director, or if the worker was hired as a technician but they ended up doing an engineering job), the foreign worker must receive a new offer of employment and work permit before the change is implemented.

If a new work permit for the promotion or change in occupation has not been previously approved and the temporary foreign worker is found to be working in an occupation other than that stated on the offer of employment, the employer may be found non-compliant.

Wages

“Substantially the same, but not less favourable, wages” means the following:

  • wages paid cannot be less than those outlined in the offer of employment provided as per section R209.11
  • any unusual deductions (such as recovery of the employer compliance fee, transportation costs) should be stated in the offer of employment

Note: An increase in wages under the IMP would not lead to a finding of non-compliance with respect to providing substantially the same wages under subparagraph R209.2(1)(a)(iii). However, wages paid that are higher than those stated in the offer of employment may indicate a change in duties, which could mean a different occupation than that offered. An increase in wages may also result in a finding that the employer did not provide “substantially the same” wages if the increase would have affected the ability of the foreign national to qualify for the Labour Market Impact Assessment (LMIA) exemption.

The offer of employment requires the input of hourly wages in Canadian dollars. Foreign workers can be paid in Canadian currency or in another legal currency as long as the foreign worker is paid the equivalent Canadian wage stated in the offer throughout the period of employment. The foreign currency must be noted in the “Alternate Compensation Scheme” section of the offer.

Working conditions

Working conditions may include non-wage related remuneration benefits and entitlements specifically detailed in the offer of employment, such as the following:

  • location of employment
  • statutory holidays, sick leave and vacation days
  • hours of work (including overtime)
  • transportation costs (where applicable)
  • accommodations, conditions and costs (where applicable)
  • extended health or medical insurance
  • other non-taxable benefits

If a change in working conditions (such as a reduction in hours or salary) negatively affects a worker, a new offer of employment and a new work permit are required before the change takes effect; otherwise, the employer risks being found non-compliant with the original job offer submitted to IRCC.

Note: A change in location, from the location stated on the offer of employment, will be considered non-compliance (that is, not “substantially the same”) if it would affect the decision on a work permit application or result in the foreign national working without authorization. For example, a change in location to another province would have a bearing on a work permit that was approved for a provincial nominee, and a fishing guide working on a lake in Canada other than the one specifically stated on the seasonal work permit would be considered to be working without authorization.

Note: Many other working conditions and workplace standards (for example, obligations around dismissals and rights to file complaints, occupational health and safety regulations and recruitment laws) are governed by provincial and territorial legislation. Employers of foreign workers must also comply with these laws in order to meet IMP requirements; however, officers (for the purpose of IMP compliance) only ensure that employers are not convicted of any offence or found in violation of any federal, provincial or territorial law governing employment or recruitment from the date the foreign national starts working.

Acceptable changes

Employers are not required to inform IRCC of changes in working conditions. However, they must provide evidence of an acceptable justification [R203(1.1)] at the time of an inspection should there be differences between the working conditions offered and those found during the inspection.

For example, a reduction in hours could be justified by a work-sharing agreement, a documented illness or a documented request by the worker for the reduction. In such cases, the employer should submit documentation to substantiate their claims regarding the change (for example, a copy of the work-sharing agreement) during the inspection.

If the change in working conditions (such as a reduction in hours or salary) negatively affects the worker, a new offer of employment and a new work permit are required before the change takes effect; otherwise, the employer risks being found non-compliant with the original job offer submitted to IRCC.

Abuse-free workplace

The employer must “make reasonable efforts to provide a workplace that is free of abuse, within the meaning of paragraph 72.1(7)(a)” of the IRPR. The definition of “reasonable efforts” in the context of providing a workplace that is free of abuse is available under the section “Employer efforts to provide abuse-free workplace.”

Definition of abuse

Paragraph R196.2 defines abuse as the following:

  1. physical abuse, including assault and personal confinement
  2. sexual abuse, including sexual contact without consent
  3. psychological abuse, including threats and intimidation
  4. financial abuse, including fraud and extortion

Charges or convictions for certain criminal offences could lead to an inspection

In addition to the types of abuse outlined in the IRPR, if IRCC receives information indicating that an IMP employer or one of its employees (a Canadian citizen, permanent resident or temporary foreign worker) has been accused or convicted of any of the following abuse-related crimes, that employer may be inspected (based on the trigger “reason to suspect”) to determine whether reasonable efforts have been made to provide a workplace free of abuse:

  • physical or sexual assault in the workplace
  • an offence causing death or bodily harm to an employee
  • trafficking in persons (or a related offence)
  • uttering threats to cause death or bodily harm to an employee
  • harassment in the workplace (including bullying)
  • fraud or extortion against an employee (including withholding pay without reason and paying the employee significantly below what was agreed to in the offer of employment)

Application of condition

For the purposes of an inspection, the employer is the person or organization submitting the offer of employment under section R209.11.

Where an employer holds sole supervisory authority in the workplace (for example, small employers and sole proprietors), they are solely responsible for complying with this condition.

However, for larger employers with more complex organizational structures, everyone who is in a supervisory role, particularly those responsible for supervising foreign workers, has a shared responsibility to comply with this condition.

If abuse is perpetrated by a third party (defined as a person or organization acting on an employer’s behalf, such as a recruiter, consultant or subsidiary), the employer may be found responsible for the actions of that third party. In this case, the employer will be expected to demonstrate efforts to address the third party’s abuse.

Employer efforts to provide abuse-free workplace

To verify whether reasonable efforts have been made, the following 3 elements will be considered:

  1. An employer has made general efforts to prevent workplace abuse.
  2. The employer or anyone in a supervisory role or acting on the employer’s behalf has not actively participated in abuse, including failing to stop abuse of which they had knowledge.
  3. Where an allegation or incident of abuse occurred, steps were taken to address it and prevent it from happening again.

An employer will be deemed non-compliant where a determination is made of a failure by the employer to demonstrate compliance with any of the elements, including the occurrence of abuse.

A. Efforts to prevent workplace abuse in general

Indicators of general efforts made by an employer to prevent workplace abuse may include, but are not limited to, the following:

  • development and distribution of policies and procedures that address situations of abuse in the workplace (for example, what to do if an employee or supervisor is aware of or experiencing abuse)
  • mechanisms to address and resolve workplace abuse, which could include complaints policies and protocols, dispute resolution mechanisms, an employee representative or contact person, employee counselling and anonymous hotlines
  • recent training (within the last 2 years) provided to employees and supervisors to identify and recognize abuse and to address it
  • indication that the employer was aware or should have been aware of the risk of abuse relating to particular staff members or particular situations where workers are or were at risk
  • indication that the employer took reasonable steps to ensure that employees with known abusive or violent tendencies do not have direct contact with foreign workers

While all employers must make efforts to provide a work environment that is free of abuse and violence, not all employers will have the same types of policies and procedures in place to deal with matters of abuse. The employer must provide sufficient information to enable verification of compliance with the regulatory condition. However, officers can use the indicators listed above in their assessments.

B. Information suggesting that abuse in the workplace has occurred

Subparagraph R209.2(1)(a)(iv) requires employers to make reasonable efforts to provide a workplace free of abuse. In order to meet this condition, employers should be asked to demonstrate efforts taken to prevent abuse generally, as well as any measures taken to respond to specific allegations or instances of abuse that have occurred.

If an employer is found to be directly responsible for abusing a foreign worker, the employer will be deemed non-compliant and will be subject to applicable consequences. The employer may be considered responsible in situations such as the following:

  • The employer, a supervisor or a third party acting on the employer’s behalf has personally abused a foreign worker.
  • There is information to suggest that it is more likely than not that the employer, a supervisor or a third party has directed, encouraged or supported abuse (including failing to act when they have knowledge of abuse) committed by another individual.
  • There is information to suggest that the employer, a supervisor or a third party has taken action to protect the abuser by discouraging or preventing a report of abuse to authorities, suppressing information pertaining to abuse or providing false or misleading information to authorities (including ESDC).
  • There is information to suggest that the employer or a supervisor has knowingly placed another employee, who has been convicted of a violent crime or abuse against an employee and has not undergone a rehabilitation process, in a position that directly interacts with foreign workers.

To determine whether abuse in the workplace has taken place, IRCC must ensure that all relevant information is taken into consideration and make a determination as to whether it is more likely that abuse occurred or did not occur (on the balance of probabilities). The outcome of any relevant legal procedure, where available, will be considered. Whereas a criminal conviction requires proof beyond a reasonable doubt and can take considerable time following an initial charge, IRCC may initiate an inspection and find an employer non-compliant following an allegation (no criminal conviction is required).

To determine whether abuse occurred, officers should consider the following information:

  • knowledge of a conviction under the Criminal Code for an offence related to abuse of an employee
  • details of any relevant allegation or information as it relates to abuse of an employee that IRCC has received or has been made aware of
  • relevant information, documents or statements gathered from the employer and employees during the course of an inspection
  • relevant information, documents or statements obtained from relevant provincial or federal authorities in accordance with applicable information-sharing agreements
  • relevant information gathered from public sources (for example, relevant media reports, including those with respect to allegations, criminal charges, convictions or provincial offences)

Where there is evidence of a possible provincial or territorial offence or of criminal behaviour regarding abuse on the part of the employer or other employees, IRCC will notify the relevant authorities in accordance with applicable procedures and directives related to information sharing.

C. Efforts to respond to or prevent the reoccurrence of abuse

Reasonable efforts to provide a workplace free of abuse, after an incident of abuse or an allegation of abuse for which the employer may not be considered actively responsible, require the employer to demonstrate concrete changes of practice or policy, such as the following:

  • indication of relevant disciplinary action, such as the dismissal of a staff member considered to be a risk to cause future abuse
  • modifications made to any of the policies, protocols, training or mechanisms listed in section A, or the creation of policies, protocols, training or mechanisms, etc.
  • other organizational changes to improve the awareness, safety or protection of individuals, such as additional security measures (locks, lights, individuals on call, etc.)
  • new reporting factors (for example, managers’ performance reviews that are based on the implementation of new abuse awareness policies)
  • full cooperation with the relevant authorities investigating allegations or instances of abuse

For this element, the employer must provide satisfactory responses to requests made in accordance with the department’s inspection authorities. Where IRCC has determined that abuse has occurred, the onus is on the employer to provide sufficient evidence of reasonable efforts to prevent abuse from reoccurring. In addition, where IRCC has determined that there is not sufficient evidence to conclude that abuse has occurred, but that there is sufficient information to cause reasonable concern that abuse may have occurred, the onus is also on the employer to provide sufficient evidence of compliance with this element.

To demonstrate sufficient efforts to respond to actual instances of workplace abuse, employers must be able to explain the specific actions taken. Such actions could include a high-level process that includes some or all of the following:

  • assessment of the facts
  • provision of support measures for the person who made the allegation (for example, receipts for medical care or counselling)
  • where appropriate, referral to relevant federal or provincial authorities (for example, the police)
  • result and action taken (for example, firing the perpetrating employee or ensuring they will not have contact with temporary foreign workers)
  • employer follow-up with the victim(s)
  • follow-up on the effectiveness of any changes made

Verifying the accuracy of information provided

Employers must be able to demonstrate that the information they provided in the offer of employment [R209.11] or at the request of an officer during the work permit application process was accurate at the time of submission.

Inaccurate information is considered false, incorrect or misleading information, or omitted information that the employer was required to provide.

Note: The offer of employment information must be provided to IRCC before the foreign national makes an application for a work permit [R209.11]. Employers must provide all accurate information pertaining to the offer in the fields provided in the Employer Portal. The Employer Portal does not allow for “attached documents,” and any references made by the employer to documents attached to the work permit application will not be considered as part of the offer of employment submitted to IRCC. If the offer is not complete, the employer may be required to resubmit a properly completed offer in the Employer Portal before the work permit can be issued, or the work permit application may be refused.

Generally, for compliance inspections, accuracy should be reviewed only if there is reason to suspect the employer may have provided inaccurate information in the offer of employment or when the work permit was processed.

To make a determination that the information was inaccurate, there should be evidence that, at the time of submission, the information was inaccurate. There may be some indication that the employer may have been attempting to circumvent requirements or induce an error in the administration of the Act. However, officers need only be satisfied that the information was inaccurate at the time it was submitted and do not need to examine the intent of the employer.

Note: This is a verification of the accuracy of the information provided in the offer of employment submitted by the employer or in submissions during the work permit application process and is not a reassessment of the work permit issuance. Therefore, as part of an inspection, the employer should be asked only to demonstrate the accuracy of information already provided.

Accuracy of information applies to all sections of the offer of employment and includes all information provided and declarations made during work permit processing.

Factors to consider include the following:

  • Employers are responsible for ensuring that all the information submitted in their offer of employment and all documents submitted during work permit processing were accurate at the time of submission.
  • It must be recognized that honest errors and misunderstandings sometimes occur in completing offers of employment fields and in responding to questions.
  • Inaccurate facts are not restricted to facts directly applicable to employer conditions (for example, wages and benefits), but apply to any field in the offer of employment (for example, an explanation of the LMIA exemption, the size of the business, declarations).

Officers must apply the aforementioned guidelines designed to support the consistent and fair application of the accuracy of information section. It is not possible to provide an exhaustive list of all scenarios. In each case, all the relevant information and the circumstances should be carefully considered.

The following situations would generally constitute inaccuracy in the offer of employment or during work permit processing:

  • The employer indicates in the offer that the duration of employment will be 24 months but signs a contract with the temporary worker before the work permit is issued for only 12 months.
  • The employer enters a higher wage on the offer submitted to IRCC than that actually paid to the worker.
  • The employer states “not applicable” in the benefits field, when the benefits are actually being provided by a foreign employer.
  • The employer signed the declaration that they are compliant with the provincial or territorial laws but knows that it has been charged with, or received a citation for, a provincial or territorial labour infraction.

An employer who submitted inaccurate information is justified if they made reasonable efforts to comply, as per subsection R209.2(4).

The following would generally constitute examples where the employer made reasonable efforts to provide accurate information:

  • In the offer of employment, the employer submitted an alternative compensation scheme because the wages were to be paid by a foreign entity or a third party, but the wage information proved to be incorrect; therefore, the employer tried to obtain and verify the wage information from the foreign entity or third party.
  • The employer is paying a foreign company to service equipment, which the foreign worker is fulfilling. In the offer, the employer indicates that the foreign worker’s salary is the contract amount that is being paid to the foreign company. During the inspection, the employer states that they were unaware of the actual amount the foreign company is paying the worker, so they just indicated the contract amount in the salary section of the offer.
  • The foreign worker is not performing standard work hours (for example, 8 hours per day), but the employer indicates standard work hours in the offer of employment. During the inspection, the employer provides a contract indicating the actual non-standard work hours, which are also reflected in the timesheets and payroll statements. The employer mentions they thought they needed to put standard hours in the offer.
  • The foreign national is being paid an annual salary, and the employer incorrectly calculates a higher hourly rate than the actual amount in the offer. The contract indicates the correct annual salary, and the payroll reflects the same. The employer mentions they made an error in calculating the salary and indicates what the actual hourly rate should have been in the offer.

Changes to the offer of employment after the work permit is issued

Typically, a foreign worker does not need a new work permit unless there has been a change to the conditions that affect the worker (for example, a change in the employer, the occupation or the location).

If, after a foreign worker has started working, the employer wishes to make changes to their salary or benefits, the employer cannot amend the benefit information in the offer of employment that was submitted to IRCC after the work permit has been issued to the foreign worker.

Proactive notification to IRCC of changes to such aspects of the foreign worker’s employment is not required under the IMP. However, the employer who provided the offer on which the work permit is based is still responsible for ensuring that the wages and benefits are consistent with what was stated in the offer of employment. Employers may be inspected on the conditions listed above; therefore, they will have to provide proof at the time of inspection that they met these conditions or provide a justification for why they did not. The employer must keep all documents related to any changes in the original offer of employment submitted to IRCC.

Employers who have concerns that they are not meeting conditions of the offer of employment can use the voluntary disclosure process.

Where it is determined that an employer has provided false, inaccurate or misleading information on the offer of employment, knowingly omitted information or knowingly provided false or misleading information during an inspection, IRCC may find that the employer did not make reasonable efforts to comply with the condition and that they are therefore non-compliant.

Document retention by employers

The compliance regulations enable IRCC to compel employers to produce documents for the purpose of verifying compliance. Employers are required to retain all documents from the first day of the associated work permit issuance to 6 years thereafter to substantiate the accuracy of information provided in the offer of employment and to demonstrate their compliance with the conditions outlined above in the section “Compliance conditions imposed on employers [R209.2].”

Decision-making

The instrument of designation and delegation designates specific positions within IRCC as decision makers in regard to inspections and determinations.

Justifications

Subsection R203(1.1) sets out specific justifications that may apply if an employer has not complied with conditions imposed under section R209.2.

These justifications are the following:

  1. change in a federal, provincial or territorial law (for example, an increase in the minimum wage)
  2. change to a collective agreement (for example, an increase or decrease in salary)
  3. changes in economic conditions impacting all employees equally (for example, an economic downturn causing layoffs)
  4. error in interpretation made in good faith if the employer subsequently provided compensation (for example, missed vacation pay)
  5. unintentional accounting or administrative error if the employer subsequently provided compensation (for example, wrong compensation value entered into the payroll system)
  6. circumstances similar to points a) to e), which may require compensation if they are similar to point d) or e)
  7. force majeure (for example, a fire or flood destroys a place of business)

Compensation

In order to benefit from justification, compensation or efforts to compensate must be demonstrated before a preliminary decision is made. Otherwise, compensation or efforts to compensate will be considered only in point calculation.

The IRPR require that, if it is determined that the actual wages paid are different from those set out in the offer of employment and the reason is due to circumstances similar to point d) or e), the employer must either provide compensation or (if compensation is not possible) demonstrate sufficient efforts to do so. During an inspection, the employer must inform IRCC of any compensation that has been provided to all temporary foreign workers who suffered a disadvantage resulting from the employer’s error.

Compensation may not be possible in the event of a dramatic change in economic conditions that directly impacts the business, in the event of force majeure, or in the event that the temporary foreign worker has already gone home, in which case the employer must demonstrate sufficient efforts to contact the foreign worker to provide compensation.

Efforts to compensate

Where applicable, the employer must be able to demonstrate that they made sufficient efforts to provide compensation (for example, cancelled schedules paid to the worker or attempted correspondence with the worker). If the employer cannot demonstrate sufficient efforts, they may be deemed non-compliant.

Inspection result: compliant, compliant with justification or non-compliant

Based on a review of all available information, possible inspection outcomes are the following:

  • Compliant: The employer has complied with all conditions reviewed as set out in the regulations or has provided sufficient evidence that their failure to meet all the conditions as set out in paragraph R209.2(1)(a) is justified because it results from one of the situations identified in subsection R203(1.1).
  • Compliant with justification: An employer’s failure to comply with the conditions set out in paragraph R209.2(1)(b) is justified because the employer made all reasonable efforts to comply with the conditions as per subsection R209.2(4). In the case of conditions set out in section R209.4, non-compliance may also be justified if it results from anything done or omitted to be done by the employer in good faith as per subsection R209.4(2).
  • Non-compliant: The employer fails to demonstrate that they are in compliance with the conditions under the IRPR, and the failure is not justified. Non-compliance is determined where the employer submitted documentation or information that, when assessed, indicates that the employer has not complied with one or more of the conditions in section R209.2 and that one of the following applies:
    • The employer has failed to provide an acceptable justification.
    • The justification provided requires the employer to undertake compensation and the employer has not done so.
  • A finding of non-compliance may also be made if an employer refuses to provide requested documentation or is otherwise uncooperative during an inspection as per section R209.4.
  • For information on assessing administrative monetary penalties or periods of ineligibility (bans) in regard to hiring foreign workers, refer to Application of consequences where an employer is found non-compliant with the conditions.

Note: The examples of non-compliance outlined above are not all-encompassing, and analysts may encounter other irregularities that could lead to a recommendation of non-compliance.

Documents that may be used to verify employer compliance

Employers must cooperate and provide documents as requested in order to demonstrate compliance. Information must always be collected following departmental information collection authorities and privacy laws. In some cases, certain information provided by the employer will need to be redacted (for example, social insurance numbers or other information that is not relevant to an inspection).

Documents employers may be asked to provide to demonstrate compliance include the following:

  • Business licence or permit, T2 Schedule 125 Income Statement Information, T2 Schedule 100 Balance Sheet Information, commercial lease agreement, etc.: To demonstrate the genuineness of the job offer for foreign workers and to demonstrate that the employer is actively engaged in the business in which the offer was made. In addition to these documents, a T4 Summary of Remuneration Paid may be used to support the total wages paid to a foreign worker.
  • Provincial or territorial employer and recruiter registration certificate or licence (where applicable): To demonstrate compliance with federal and provincial or territorial employment and recruitment legislation.
  • Anti-abuse policies, codes of employee conduct, guidelines provided to staff, protection or support protocols to staff, training, steps taken to resolve complaints of abuse, anti-harassment policies, protocols, etc.: Evidence that the employer has made reasonable efforts to provide a workplace free of abuse (in assessing this, all available information will be weighed).
  • Payroll records: To ensure the appropriate prevailing wage and overtime are being paid and deductions are being made (Canada Pension Plan, employment insurance, income tax), to explain any non-standard deductions and to ensure the working hours match those stated in the offer.
  • Cancelled cheques paid to the worker, money orders or bank statements: To determine whether employers have provided temporary foreign workers with wages, working conditions, and appropriate compensation.
  • Time sheets: To ensure workers are working the number of hours set out in their offer of employment (in most cases, this is usually defined as 30 or more hours per week).
  • A job description: To ensure foreign workers are working in the same occupation as that stated in the offer, the NOC matches the occupation, the occupation qualifies under the LMIA exemption and the occupation follows Canadian labour standards.
  • Registration with provincial or territorial workplace safety insurance or workers' compensation clearance letter (if applicable): To ensure the employer has registered for workplace safety insurance and is in good standing, to ensure that workers are covered in case of injury.
  • Travel itinerary or invoices (if applicable): To determine if an employer provided round-trip transportation costs for foreign workers under their employment.
  • Accommodation information (if applicable): Where the employer is providing accommodation, a copy of the rental agreement.
  • Confirmation of insurance coverage (if applicable): Proof the employer paid for insurance as indicated on the offer of employment (the documentation provided as proof of payment should not include financial account numbers).
  • Employment contract: Employers may be required to submit a copy of the jointly signed contract during an inspection to demonstrate compliance.
Note: This is not an exhaustive list. Employers should keep a record of all documentation in order to demonstrate compliance with program requirements.
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