published on 21 August 2018 @ 3:01 pm · COMMENT
Important Compliance Considerations – Compliance with Employment/Recruitment Legislation and Providing an Abuse-Free Workplace
When employers think of their compliance obligations with respect to the employment of temporary foreign workers, most employers think of their responsibilities to the foreign worker specifically – the requirements to pay temporary foreign workers the correct wage, provide them with the benefits promised to them, ensure that they work in the positions offered to them, and allow them the correct amount of vacation. While these are certainly important and central aspects of employer compliance with immigration regulations, these are not the only bases upon which an employer may be found non-compliant.
Employers may also be found to be non-compliant when certain situations arise that may or may not impact the temporary foreign worker directly. These situations include an employer’s failure to comply with employment and recruitment legislation, and the failure to provide a workplace free of abuse.
Compliance with Employment/Recruitment Legislation
Employers may also be found to be non-compliant with immigration regulations if they do not comply with federal, provincial or territorial laws governing employment and recruitment. This includes, but is not limited to, compliance with labour law areas dealing with health and safety, unfair dismissal, the right to file complaints, leave, and workplace privacy laws. In order to remain compliant, employers must not be convicted of any offence or be found in violation of any federal, provincial or territorial law governing employment or recruitment from the date the foreign national starts working. Most of this information is readily available online from federal or provincial websites. As a result, our office should be notified immediately if, as an employer of a temporary foreign worker, you or your company is found to be in violation of any employment or recruitment law to assess the compliance implications.
Providing an Abuse-Free Workplace
Employers may also be found to be non-compliant if they fail to make reasonable efforts to provide a workplace that is free of abuse. Abuse is defined as including: physical abuse (ex. assault, personal confinement); sexual abuse (ex. sexual contact without consent); psychological abuse (ex. threats, intimidation); and financial abuse (ex. fraud, extortion).
To determine whether reasonable efforts have been made to provide an abuse-free workplace, officers will consider three (3) elements:
1. Whether an employer has made general efforts to prevent workplace abuse;
2. Whether an employer or anyone in a supervisory role or acting on the employer’s behalf has actively participated in abuse, including failing to stop abuse of which they had knowledge; and
3. Where an allegation or incident of abuse has occurred for which the employer may not be considered actively responsible, whether the employer took appropriate steps to address the incident and prevent it from happening again.
While it is important for employers to ensure that they do all they can to prevent abuse and to take appropriate steps if an incident of abuse does occur, it is most important for employers to recognize that an incident of abuse found to be perpetrated by the employer or someone acting on the employer’s behalf is sufficient to support a finding of non-compliance. Where an employer holds sole supervisory authority in the workplace, such as with small employers and sole proprietors, they are solely responsible for complying with this condition. However, in larger organizations, everyone who is in a supervisory role, particularly those responsible for supervising foreign workers, has a shared responsibility to comply with this condition. Even abuse perpetrated by a third party acting on behalf of the employer, such as a recruiter, a consultant or a subsidiary, may result in a finding of non-compliance against an employer.
In addition, employers may be found non-compliant if an employer, supervisor, or third party failed to act when they became aware of an allegation of abuse, or if they knowingly place an employee, who has been convicted of a violent crime or abuse against another employee and has not undergone a rehabilitation process, in a position that directly interacts with foreign workers.
Failure to make reasonable efforts to provide an abuse-free workplace is one of the most serious employer compliance violations, carrying the most potential for liability under immigration regulations. It is therefore essential that you notify our office immediately if, as an employer of a temporary foreign worker, you or your company becomes aware of any allegations of abuse within the organization, so that we can assess compliance liability and advise on how to address the matter from an immigration compliance perspective.
Immigration compliance is all-encompassing, contrary to the understanding of most employers. While compliance with Canadian legislation and dealing with abuse in the workplace seems separate and distinct from immigration matters, they are intimately connected through immigration compliance, in order to ensure that temporary foreign workers are as protected as possible from exploitation. This means that when these situations arise, employers must ensure that they are protected from all liability, including liability under immigration compliance regulations.
- Jacqueline Bart and Annsley Kesten’s co-authored the legal article “Canada’s new impaired driving laws tougher on immigrants” for The Lawyer’s Daily, July 19, 2018. View the article Here.
- Jacqueline Bart’s position on Labour Market Impact Assessments (LMIAs) was featured in Canadian Lawyer Magazine, in the article “Attracting foreign workers”. July 9, 2018
- Jacqueline Bart and Annsley Kesten contributed to the ABA Section of International Law publication, the Year in Review (YIR) for 2017 on Canadian Immigration. View the YIR here.
- Jacqueline Bart was rated within the top 100 lawyers (in all areas of law) by Lawyer Monthly 100 – Canada 2018