Service Canada recently announced that it will begin performing unannounced inspections of workplaces that hire temporary foreign workers, concentrating their efforts on the agricultural and caregiver sectors.

As of 2013, Service Canada has reserved the right to perform inspections on any employer accessing the Temporary Foreign Worker Program. These inspections were triggered by 3 circumstances; known past non-compliance, random selection, or reason to suspect. However, up until now, Service Canada was bound to provide prior notice to an employer before inspection.

On February 14, an email from Service Canada highlighted an updated policy that now allows their inspectors to perform surprise investigations. Meaning they can come onto your property, even if you are not there, and begin an investigation without prior notice (although they have noted they would not break into anything locked up). Furthermore, this policy allows for the inspection of an employer’s computers, electronic devices and all documents and take video or photos.

While inspections of any government funding programs are vital to enhancing transparency and accountability among its recipients, it is concerning to some that inspectors seem to now have ultimate authority. Additionally, Labour Market Impact Assessments (LIMA’s) can be suspended during any type of review, causing delays in hiring and negatively impacting operations, especially in seasonal agricultural work.

In accordance with the new policy, inspectors can now:

• conduct on site visits without a warrant (private dwellings are excluded), prior notice may or may not be given to employers;
• interview the employer and ask any relevant questions based on the conditions set out in the LMIA application, decision letter and annex; and
• interview any person employed by the employer (with consent and without the presence of the employer), and ask any relevant questions based on the conditions set out in the LMIA application, letter and annex as well as questions concerning general treatment of worker by employer.

So how do you minimize the impact of these inspections on your business?

• Review your current LIMA documents to ensure you understand your responsibilities (many people never read the whole agreement; ignorance does not excuse non-compliance)
• Keep and review the last six (6) years of records related to your LIMA to ensure they are accurate
• Immediately report any discrepancies you may find and any changes you make to rectify errors
• Inform Employment and Social Development Canada (ESDC) of any changes relating to a LIMA or to a temporary foreign worker
• Undergo proper orientation with all workers (new and returning) to inform them of the abuse policies in place and how to elicit help without reprimand
• Be cooperative and provide reasonable assistance to inspectors during an investigation

Kim K.C. Ly, with Borders Immigration Consultancy suggests that employers, whether they have been through a prior audit or not, “do a self-check to determine if there are any inadvertent discrepancies. Even the best of them have found some minor errors through a self-audit. If they don’t have the time to do it or don’t know what to look for, then it would be in their best interest to seek the assistance of a professional.”

Furthermore, since December 1, 2015, ESDC has been encouraging employers to take any necessary steps to fix any errors they suspect may be in violation of their LIMA and to voluntarily disclose these discrepancies. There is a chance that these disclosures may result in an investigation, however, Ly suggests that consideration will be given to the employer for their transparency, resulting in lesser penalties or a “slap on the wrist”.

As a further caution, Ly advises that an employer does not make a voluntary disclosure without first correcting the issues and preparing an explanation for how the violation occurred. The better the explanation, the less likely an investigation will be launched. “Let me be clear however. It’s not guaranteed that an investigation won’t be launched. It’s just less likely” says Ly.

Disclaimer: This article is intended for general information only and is not intended as legal opinion or advice. If you have questions specific to your situation, contact your Human Resource lawyer. The views and opinions expressed do not reflect the official position of BNG Bossy Nagy Group or any other affiliate.

Sources:

Hrvatin, V. (2018, March 25). Farmers dismayed as government to begin unannounced temporary foreign worker checks. National Post, Retrieved from http://nationalpost.com/news/canada/farmers-dismayed-as-government-begins-unannounced-temporary-foreign-worker-audits

Johnson, K. (2018, March 21). Service Canada to conduct surprise inspections of Canadian farms, computers, devices. iPolitics, Retrieved from https://ipolitics.ca/2018/03/21/policy-allows-service-canada-to-conduct-surprise-inspections-of-canadian-farms-computers-devices/

Employer compliance inspections. (2018, February 26). Retrieved from https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/foreign-workers/work-without-permit/employer-compliance-inspections.html