The following is from a recent presentation at the 2023 American Immigration Lawyers Association / GMS Annual Global Migration Forum presented by the founder of Jain Immigration, Ravi Jain.
Introduction and Background
Before I discuss recent developments in employer compliance, let us consider the employment landscape in Canada. First, we are experiencing a general population boom. We increased our population by 2.7% last year, which was the biggest jump since 1957. Put another way, our country of 38 million added more than one million people. Yet the unemployment rate is extremely low and demand for foreign workers continues to remain very high.
Employers wanting foreign workers may use two broad programs. The first is the Temporary Foreign Worker Program (TFWP) which is administered jointly by our Department of Labour (ESDC) and the Department of Immigration (IRCC). Under this program, employers must submit a Labour Market Impact Assessment which assesses whether Canadians or Permanent Residents are available. This program is used mainly by food processors and farm workers. Approvals under the TFWP program jumped 68% from 2021 to 2022 (at over 220,000 positions).
The second program is the International Mobility Program (IMP), administered strictly by IRCC. Its objective is to advance the broader social, cultural and economic interests of the country and no labour test is required. The IMP covers work permits under international and bilateral agreements, post-graduate students, intra-company transfers, academics, religious workers and young people on working holidays. In 2022, over one million work permits were issued under the IMP alone and there has been a 193% increase over the last decade.
Employer Compliance: Who Does It Cover?
All work permits under the TFP are “closed” or tied to a specific employer whereas under the IMP, work permits may be “closed” or “open” (which allows workers to work for any employer, anywhere in Canada). Only employers who are named on closed work permits are subject to Canada’s employer compliance regime. This also leaves out the just over 800,000 students (nearly triple the number from 10 years ago) who are allowed to work for any employer pursuant to their study permits.
Recent Trends: Remote Work
One hot topic in Canada right now is the issue of remote work. Statistics Canada reported in 2021 that 32% of Canadian employees worked mainly from home, compared to just 4% in 2016.
For foreign workers, though, it seems remote work is not permitted. The government has issued statements during meetings with lawyer association groups and also in response to formal inquiries by lawyers. In a May 17, 2022 response, the government indicated:
“location of work is part of the conditions imposed on employers under section 185 of the Immigration and Refugee Protection Regulations. In addition, employers are subject to inspections under the… TFP or the… IMP – which includes working conditions. Remote work would have an impact on the ability to conduct inspections which are required… Moreover, working in a different province/territory from that of the employer would have an impact on the applicable labor laws and the provision of benefits for TFWs [temporary foreign workers] as they fall under provincial/territorial jurisdiction.”
Indeed, part of the problem is that if workers work in a different province (with personal identification reflecting where they actually live) and this conflicts with what is stated on their work permit, there could be issues obtaining health care. Prevailing wage rates are tied to specific regions and cities and so this could lead to problems during employer compliance audits if workers are living in a different area from what was specified on the work permit.
Also, while no work permit is required for those who are in Canada performing work for foreign employers, if work is being done for a Canadian employer which can be done remotely, it raises the question of whether the employee really needs to be physically in Canada (and this could lead to work permit refusals).
The reality of remote work has been raised to government officials and they have said at conferences such as the Ontario Law Society Summit in November 2022 and also via Immigration Practitioner liaison meetings that they are aware of the changing nature of work and “all we can say is that discussions and reflections are currently underway on the subject.”
Recent Legislative Amendments
On June 21, 2022, significant amendments were published setting out new employer requirements to hold employers accountable for non-compliance. Employers must now provide up-to-date information on worker rights and they must have a signed employment agreement outlining wages, occupation, working conditions and provide access to health care if an injury or illness occurs. Employers using the TFP specifically (no doubt due to media reports relating to abuses of agricultural workers who mainly use this program) must obtain and pay for private health insurance covering emergency medical care if not already covered under provincial government plans. Employers are also prohibited from charging or recovering recruitment fees.
There are Administrative Monetary Penalties and infraction categories (such as type A, B, C). The more serious infraction type (C) is applied to the new prohibition against charging or recovering recruitment fees and not obtaining private health insurance where required. Moreover, employers are subject to warning letters and also to be temporarily or permanently deemed ineligible to access the programs (FWP and IMP).
Opportunities for employers to respond are provided before findings of non-compliance are made and employers may accept penalties or apply for judicial review.