On December 31, 2013, a new set of amendments will come into force which will impact the Temporary Foreign Worker Program (TFWP) and employers who wish to apply for a Labour Market Opinion (LMO). These changes take place through amendments to the Immigration and Refugee Protection Regulations (IRPR) and a new set of Ministerial Instructions by the Minister of Employment and Social Development Canada. Changes include the following:
– No LMOs will be issued under the authority of the Minister of Employment and Social Development Canada to employers who regularly offer striptease, erotic dance, escort services or erotic massages. The motive behind this restriction is to protect foreign workers from risk of abuse or exploitation.
– New conditions on employers under the IRPR. This includes the following requirements:
- Employers will be required to keep any document that relates to compliance with conditions of the IRPR for 6 years, starting from the first day of the period of employment that the work permit is issued to the foreign worker. Employers must also be able to demonstrate information they provided in an LMO application was accurate;
- Employers are required to make “reasonable efforts” to ensure a workplace is free of abuse; and
- Employers must hire, train or make “reasonable efforts” to hire or train Canadians or permanent residents if this is one factor that led to a work permit being issued.
- As of December 31, 2013, employers must complete a new LMO application form with modified questions and attestations.
– In order to verify an employer’s compliance with conditions in IRPR for a period of 6 years (beginning on the first day of the period of employment which the work permit is issued), Service Canada and the Minister of Employment and Social Development Canada will have the authority to administer inspections. Note however, this is different from an employer compliance review that takes place in the assessment of an application made for an LMO. Verifying compliance will give Service Canada and the Minister the power to:
- Request that employers provide documents which may demonstrate compliance with conditions;
- Conduct inspections on-site without a warrant;
- Interview Canadian employees and foreign workers by consent.
– Employers will have the chance to give justification and make corrections before a determination of non-compliance is made. Where the Minister determines there has been non-compliance, the consequences outlined are as follows:
- Employers made not be eligible to hire foreign workers for 2 years, and may have their organization’s name, address and ineligibility period published on a public list;
- Employers may be issued a negative LMO on any pending LMO applications; and/or
- Employers may have LMOs issued previously revoked.
– Minister of Employment and Social Development Canada also has the power to suspend and revoke LMO applications, or refuse to process applications in accordance with public policy considerations in the Ministerial Instructions (including instructions for specific sectors, regions, or occupational groups). However, any employers who may have LMOs suspended or revoked will have a chance to respond.
For more information, please contact Green and Spiegel LLP.