Controversial Inspection Measures Proposed for Foreign Worker Program

Enhanced inspection regulations for Canada’s Temporary Foreign Worker Program (TFWP) were announced on Saturday, June 8th. When the proposed regulations take effect, immigration officials will have the right to enter Canadian places of employment without first obtaining a search warrant.

The inspection regulations have been proposed in the midst of a nation-wide controversy surrounding Canada’s use of temporary foreign workers. Specifically, two highly publicized cases brought to light what may be widespread abuses of the TFWP. In response to public criticism, the government has announced a number of new measures to demonstrate its tough policy towards Canadian employers who refuse to comply with program standards.

New Inspection Rules

Usually, when Canadian employers wish to hire a foreign national, they must first successfully apply for and receive a positive Labour Market Opinion (LMO). As part of an LMO application, employers must comply with Federal and Provincial labour standards for wages, benefits, and working conditions.

The new rules will allow Human Resources and Skills Development Canada (HRSDC), and in some cases Citizenship and Immigration Canada (CIC), to enter workplaces in order to seek proof of employer compliance with these and other issues. There are three circumstances when HRSDC or CIC will be able to enter a place of employment:

• It is suspected that an employer is not complying or has not complied with TFWP conditions;
• An employer is known to have not complied in the past; or
• An employer is chosen at random for compliance verification.

The regulations, published in the Canada Gazette, stated that officials would “have the authority to enter and inspect any premises or place in which a [temporary foreign worker] performs work”, noting that a warrant will be needed only if the place of work is a private residence. This authority lasts for “any time during and up to six years after the employment of a [foreign worker]”, meaning that even if a worker has left, the government may years later choose to conduct an inspection.

Employers could be found non-compliant if they fail to meet any of the conditions imposed by the LMO. If deemed non-compliant, an employer would be stripped of the ability to use the TFWP for two years and would have their name added to a public list of ineligible businesses that will be posted on CIC’s website. They would also be banned from providing offers of employment in support of Federal Skilled Trades or Federal Skilled Worker applications.

Response to New Rules

Canada’s welcoming attitude towards temporary foreign workers has resulted in over 200,000 new foreign workers arriving in Canada each year. Some stakeholders have argued that with such a large number, the government has not been doing enough to ensure that the interests of both Canadians and foreigners are safeguarded, and have called for greater oversight of the program.

“While more oversight is definitely a good thing, I and many others are wary of the recently announced inspection measures,” said immigration attorney David Cohen. “Giving government officials the mandate to enter Canadian workplaces without first securing a warrant is, in my opinion, a slippery slope that could result in the erosion of our right to privacy.”

The inspection rules are not the only proposed changes to the TFWP. Recent months have seen a slew of programming changes, some of which have already been put in place and others which have been proposed and are awaiting ratification.

Attorney Cohen added that “many further rule changes have been proposed, including extending mandatory recruitment periods for employers and instituting fees for LMO applications. The process is becoming more complicated. Canadians who plan to hire foreign workers should pay close attention to the changing landscape.”