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Compliance Requirements for Employers of Work Permit Holders

In a small percentage of cases, Employment and Social Development Canada may request evidence of the compliance with the terms of a previous Labour Market Opinion (LMO) approvals or Confirmations. In doing so, a reviewing official would seek to be satisfied that “substantially the same” wages and conditions as outlined in an application were in fact provided to the temporary foreign worker and that any other commitment that contributed to the decision was upheld. Other than wages of the foreign worker, other factors may include a stated intent to create or retain Canadian employees, an intent to impart skills training to Canadians, or other aspects of a case that may have had a perceived impact on the Canadian labour market.

Employers are therefore advised to retain documentation attesting to, at a minimum, those factors constituting the terms and conditions of the offer to the foreign worker. The following are examples of such documents that would be needed for foreign workers in high skill occupations (i.e., National Occupational Classification (NOC) level 0, A, or B):

1. Salary and/or wage records

i. Demonstrating that the substantially the same wage and overtime is/was paid to the foreign worker and that such wage was compliant with any prevailing wage requirements that may have applied;

ii. To make sure that requisite deductions at source are made (if applicable); and

iii. To explain any non-standard deductions that may occur.

2. Time sheets which ensure that workers are working the number of hours set out in the original LMO request and subsequent Confirmation.

3. A job description demonstrating that temporary foreign workers are working in approved occupations and under the same labour standards as their Canadian counterparts.

4. The temporary foreign worker’s work permit to demonstrate that the information on the work permit issued by Citizenship and Immigration Canada (CIC) accurately reflects the information on the LMO confirmation letter and annex. It is not unusual for errors to occur when officials issue the actual work permit following LMO approval; if such errors occur, applying for correction may be advisable if the error is significant, in which case evidence of such a request should be kept as well.

5. Evidence of registration with provincial/territorial workplace safety demonstrating the existence of workplace safety insurance, to ensure that workers are covered in case of injury. When foreign employers send their employees to Canada for short duration projects in Canada, worker’s compensation insurance from the home country may cover such work, in which case keeping evidence of the existence of that policy is advisable.

In the event the Foreign Worker is or has been employed in occupations requiring lower levels of formal training (NOC skill level C and D), or hired under the Seasonal Agricultural Worker Program (SAWP) or the Live-in Caregiver Program (LCP), the following additional documentation will be requested, attesting to compliance with commitments specific to those occupations:

6. Documentation showing that the employer has paid the foreign worker’s transportation costs from his/her current place of residence to the location of work in Canada, and proof the employer has or will pay the return transportation costs to the country of permanent residence.

7. Accommodation information demonstrating, if applicable, that the employer helped the foreign worker find accommodations. In some cases, the employer may supply such accommodations directly, in which case a copy of a relevant agreement may be needed.

8. Proof the employer paid for private health insurance until the foreign worker was eligible for provincial/territorial health insurance. Note that some provinces impose a delay following the application for coverage until the applicant becomes fully covered. Medical insurance may be needed during this time.

If other factors concerning the impact on the Labour Market affected the outcome of the LMO application, then it is advisable for the employer to retain documents that attest to compliance with such commitments. There is no formal list of documents that attest to these factors as they may vary. However, an employer should use good judgment to retain documents pertaining to significant points presented in an application.

The term “substantially the same” appears above. It is understood that circumstances may cause legitimate deviation from the terms and conditions that are committed to during the LMO application. When assessing compliance, officials will have the discretion to allow for variations that did not substantially diverge from the terms and conditions stated in an application. This could include, for the sake of example, variations in wage that occur as a result of currency exchange rates or changes in wage due to collective bargaining agreements.

Evidence of compliance could be requested (again in a small percentage of cases) during the course of random Compliance Requests made in the context of the submission of a LMO application or in the context of random inspections. Employers should retain documentation for a period of six years following the receipt of the work permit, which itself follows the issuance of a LMO by as many as six months.

At present, these requirements governing compliance assessment applying to employers that seek and obtain work permits through LMOs and the Temporary Foreign Worker Program. Employers of foreign workers admitted under exemptions from the LMO (e.g., NAFTA) are not currently subject to these requirements.

Date Posted: January 29, 2014 Posted In: Labour Market Opinion

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