As those dealing with foreign workers in Canada will know, work permits come in two primary flavours – with LMIA, and without LMIA. An LMIA (Labour Market Impact Assessment) application is a process whereby an employer substantiates to the government its inability to find a Canadian citizen or permanent resident for a particular position, and as such, seeks to hire a foreign worker. (Work permits that do not need an LMIA have various other breakdowns and requirements.)
Though it would may seem trite to say that everyone should read what they’re signing, and though non-LMIA work permits have their issues as well, we wish to focus today on the ongoing requirements that employers agree to, every time they secure an LMIA. Unfortunately, there are a number of issues in the ‘fine print’ of the application that often get overlooked, or which are taken for granted.
LMIA applications necessitate a tedious and difficult process, and their outcome can never be assured. When an employer gets a positive LMIA, they usually jump for joy. ‘Great – we’ve got our LMIA; we’re good to go to bring the foreign worker.’ Well, not so fast. Yes, it may be true that the employer has secured an LMIA – and that it wasn’t easy – but the employer’s obligations and ongoing requirements are far from over. Indeed, failure to recognize the obligations that the employer has agreed to in getting an LMIA, may ultimately lead to the unravelling of the LMIA, or even sanctions including monetary penalties, blacklisting, and restrictions on hiring further foreign workers.
There are, in the body of an LMIA application, various mandatory assertions and/or undertakings which an employer must agree to before being granted an LMIA. These assertions/undertakings are found near the end of the form, and are pre-printed statements with simple check boxes. All the check boxes must be checked, or the application will not be adjudicated. At first glance, the statements on the form seem innocuous. But when an employer checks those boxes, and signs off to the obligations set out, they are committing to a number of onerous requirements. Among other matters, employers are certifying or agreeing that:
- They will continue to be, compliant with all recruitment requirements and can provide proof upon request.
- The employment of a foreign worker will not adversely affect the settlement of any labour dispute in progress or the employment of any person involved in the dispute, should there be an ongoing or pending labour dispute at my business, and that they will inform Service Canada in the case one should develop.
- They will comply with the prevailing wage requirements and agree to review and adjust, when applicable, the Temporary Foreign Worker’s (TFW’s) wages, at least annually, to ensure he/ she continues to receive the prevailing wage for the occupation and region where he/she is employed. (emphasis added)
- They will provide the TFWs with employment in the same occupation as that set out in the TFWs offer of employment and with wages and working conditions that are substantially the same as — but not less favourable than — those set out in the LMIA application.
- For a period of six years from the first day of employment of a TFW, they may be subject to an inspection and that they will retain any documents that relate to the LMIA application and the terms and conditions of the LMIA letter and annexes.
- The employment of the TFW(s) will not lead to job loss or reduction in work hours for any Canadian or permanent resident during the period of employment for which the work permit is issued.
And that:
- They will immediately inform Service Canada of any changes related to the foreign worker’s terms and conditions of employment as described in the LMIA.
These certifications or agreements cannot be taken lightly, particularly since audit can occur for up to 6 years after approval. Further, it is no defence to say, where applicable, that the form was pre-populated by counsel. Employers are responsible for what they sign.
As will be noted, one particular obligation is highlighted, and discussion of that obligation is now highlighted as well. That obligation indicates that an employer MUST, at least annually, adjust compensation to ensure that the foreign worker in the relevant position is being paid prevailing wage, based on the NOC for that position. That means that an employer has an ongoing obligation to review and adjust salary as required so long as a foreign worker is in Canada. The wage provided for at the outset of employment, even if completely appropriate at that time, may become obsolete at a later point, and an employer cannot fail to keep up with rising prevailing wages.
Certainly, the preceding paragraph relates to one very important requirement, but the others are also not to be overlooked. We would specifically note the final bullet that requires Service Canada to be notified of ANY change to a foreign worker’s terms and conditions of employment. Failure to do so may lead to the inability to secure further LMIAs and work permits, as well as other sanctions (as indicated above).
We wish to underline with this article the need for employers in Canada to be completely aware of the obligations they are undertaking each time they complete an LMIA application, and that their obligations are by no means over after an LMIA application is adjudicated. When an employer submits an LMIA application, it is imperative that they recognize the ongoing requirements to which they are subject. Without this recognition, future violations may occur, and may even go unnoticed in the organization, until it is too late.
The information in this article is for general purposes only, and not intended as legal advice for any particular situation.