October 7, 2015

Employer Non-Compliance: A Costly Affair

Posted by Legal Team - Bellissimo Law Group PC

The Economic Action Plan 2014 Act, No.1, which received Royal Assent on June 19, 2014, authorized a system of Administrative Monetary Penalties (AMPs) for non-compliant employers.  Regulations governing this new AMP regime, both under the Temporary Foreign Worker Program (TFWP) and the International Mobility Program (IMP)) are set to take effect on 1 December 2015.

AMPs are a form of administrative sanction which will be administered by Citizenship and Immigration Canada (CIC) and the Employment and Social Development Canada (ESDC).  They are cumulative and can range from $500-$100,000 per violation. Non-compliant employers may also face a period of ineligibility to hire foreign nationals.

When determining the total AMP that will be assessed against a non-compliant employer, a points determination will be administered. The size of the penalty will be determined by the points system below and take into consideration the following:

  • Size of employer (less than 100 employees or less than $5M revenue – including affiliates);
  • Type of violation, whether Type A, B or C violation;
  • Severity of the violation; and
  • History of compliance.
Administrative Monetary Penalty Amounts

The government was clear that the purpose of this new regime was to encourage compliance with the TFWP and IMP, and not to punish employers.  Accordingly, if an employer voluntarily discloses a violation, ESDC may reduce the AMPs assessed against an employer.  It is important however that the disclosure be made prior to any compliance and enforcement action being initiated.  ESDC will also take into account the following circumstances when evaluating violations:

  • Errors made in good faith
  • Reasonable efforts were made to comply
  • The violation resulted from a genuine misinterpretation of obligations or requirements
  • The violation resulted from changes to Federal or Provincial law
  • The violation resulted from changes to provisions of a collective bargaining agreement

Given the high monetary penalties now involved with findings of non-compliance, it is important that employers comply with the commitment(s) made both at the Labour Market Impact Assessment application as well as confirmation stage.  In addition, IMP employers must ensure they are compliant with the details confirmed on their “Offer of Employment to Foreign National Exempt from a Labour Market Impact Assessment” forms.

Stay tuned on our blog for more AMP information as it becomes available.