The federal government has made significant changes to Canada's Temporary Foreign Worker Program (TFWP) during the past year, and additional changes are on the horizon. Critics of the TFWP allege that employers have used this program to reject or even displace qualified Canadian workers in favour of lower-paid foreign nationals. In an effort to respond to such criticism, the government has imposed strict new requirements on employers using TFWP, with potentially heavy penalties for non-compliance.
In December 2013, the federal government imposed new requirements for TFWP employers. Employers who hire foreign workers must now retain all documents relevant to their TFWP compliance for a period of six years after a work permit is issued to a foreign worker. During this period, employers must also be able to demonstrate that the information provided in these documents was accurate. Furthermore, employers must make reasonable efforts to hire or train Canadian citizens or permanent residents before turning to the TFWP.
The new regulations authorize the Ministry of Employment and Social Development Canada (EDSC) to conduct warrantless inspections of TFWP employers. The EDSC may conduct such an inspection if there is "reason to suspect" that an employer is not in compliance with the requirements of the TFWP. The EDSC may conduct an inspection up to six years after a work permit was issued to a foreign worker, and may interview the foreign worker(s) as well as other employees during an inspection. If an inspector concludes that the employer
is not in compliance with the TFWP, the employer may be publicly "blacklisted" and deemed ineligible to hire foreign workers.
Further revisions of the TFWP requirements and penalties for non-compliance are forthcoming.
On March 28, 2014, Bill C-31, an omnibus budget implementation bill entitled Economic Action Plan 2014 Act, No. 1, was tabled in the House of Commons. Should this Bill become law, it will authorize the Ministers of Employment and Social Development and for Multiculturalism to impose administrative monetary penalties for "abuses" of the TFWP. The "abuses" targeted by these penalties are not yet specified, nor are the amounts of the respective penalties. However, the federal government has stated that contraventions likely to attract a fine in the future include (but are not limited to):
- Hiring a foreign worker rather than a qualified and available Canadian citizen or permanent resident;
- Paying a foreign worker less than the prevailing wages for the occupation and region;
- Making false or misleading statements on a Labour Market Opinion (LMO) application.
The speed and complexity of the federal government's revisions to the TFWP raises concern that employers may face heavy penalties for inadvertent non-compliance. It is likely that substantial new fines for contraventions that are as yet unspecified will be enacted within the year. Indeed, on April 24, 2014, the government placed an immediate moratorium on the Food Services Sector's access to the TFWP after it was made aware of serious allegations of abuse. It is clear that employers who are found to have violated the rules may face potential criminal prosecution including fines and jail time. Employers are well advised to monitor the forthcoming changes closely and minimize their exposure.
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