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New Employer Requirements for LMO-Based Work Permits Become Law December 31, 2013

Starting December 31, 2013, various amendments to the Immigration and Refugee Protection Regulations (IRPR) come into force, in addition to new Ministerial Instructions issued by the Minister of Employment and Social Development Canada (ESDC) which impose additional obligations on employers under the LMO-based Temporary Foreign Worker Program (TFWP).

As a result, employers who want to apply for a Labour Market Opinion (LMO) as of today need to be aware of the wide-ranging investigation powers of ESDC, and the new conditions imposed.

1. New LMO conditions imposed on employers

Effective December 31, 2013, employers who have obtained an LMO from ESDC/Service Canada will be required retain any document that relates to compliance with the LMO’s conditions for a period of 6 years, starting on the first day of the employment for which the work permit was issued to the foreign worker. In addition, for the same employment period, the employer must be able to demonstrate that any information they provided in an LMO application was accurate, including all advertising and recruitment efforts.

Employers are also required by this new regulatory authority to make reasonable efforts to provide a workplace that is free of abuse and to demonstrate that the employer has hired or trained (or made reasonable efforts to hire or train) Canadians or permanent residents, if that was one of the factors that led to the issuance of the work permit.

2. New legal authority for ESDC/Service Canada to conduct warrantless inspections

ESDC/Service Canada now has the authority to conduct inspections, without first obtaining a warrant, to verify an employer’s compliance with immigration and employment requirements for LMO-based work permits.  This authority covers a period of 6 years, starting on the first day of a foreign worker’s employment under an LMO-based work permit.  These inspections are in addition to the normal Employer Compliance Reviews (ECRs) that will be undertaken when LMOs are issued by ESDC/Service Canada.

As part of the new, warrantless government inspection process, employers must demonstrate compliance with the conditions of an LMO-based work permit. ESDC/Service Canada will have the authority to verify compliance by:
·         Requiring employers to provide documents that relate to compliance with those conditions;
·         Conducting on-site inspections without a warrant (private dwellings excluded and, in the majority of cases, advance notice will be given to employers); and
·         Interviewing foreign workers or Canadian employees, by consent. (Ministerial Instructions)

3. Penalties of employer non-compliance

A determination of non-compliance will result in an employer being deemed ineligible to hire foreign workers for 2 years.  Employers will have their name, address and period of ineligibility published on a public ban list and be issued negative LMOs on any pending applications.  Moreover, previously-issued LMOs may be revoked by ESDC.  Although justifications for non-compliance by an employer are permissible in law, these are severely limited in scope.

4. LMO bars based on government public policy
ESDC/Service Canada may also refuse to process LMO applications based on any public policy considerations which the government may choose to introduce for selected sectors, regions, or occupational groups. In other words, if the government decides that foreign workers are not required in a certain business sector, region or occupation, the government will refuse LMO applications for that specific sector, region or occupation. ESDC is required to publish on its website, in advance, any information related to any decision made by the government regarding the refusal to process LMO applications for any sectors, regions or occupations.

5. Ongoing Employer Compliance Reviews (ECRs)
Employer Compliance Reviews, which are normally conducted as part of the LMO assessment at the time of an LMO application, are also subject to changes as of December 31, 2013.  These changes will include increasing the period of time that ESDC may review an employer’s compliance (regarding wages, working conditions and occupation) from 2 to 6 years.

6. New LMO application
As of December 31, 2013, employers will be required to complete an updated LMO application form that includes modified questions and additional employer attestations regarding the employer’s responsibilities.

For more information, please contact BartLAW Canadian Immigration Barristers and Solicitors.