In November 2015 Ontario amended its Employment Protection for Foreign Nationals Act, 2009 (EPFNA). These changes were made with little fanfare but impact any employer in Ontario that employs temporary foreign workers (TFWs) or that may be hiring TFWs in Ontario.
Employers need to be aware of the additional requirements placed on them by the EPFNA, not only to avoid being in violation of the EPFNA, but also to avoid potential non-compliance under the federal Immigration and Refugee Protection Act (IRPA).
Ontario's EPFNA
This legislation has been in place since 2009 and was initially brought in as a protective measure regarding TFWs in Ontario, with the focus on regulating recruiters and recruiting practices.
The EPFNA was amended on November 20, 2015 and was expanded to apply to employers. Section 3 of the EPFNA sets out that it applies to "every person who employs a foreign national in Ontario pursuant to an immigration or foreign temporary employee program" and "every person who acts on behalf of" such an employer.
The text of the full EPFNA and the Ministry of Labour's FAQ is available here.
Several amendments to the EPFNA are of particular concern to employers utilizing TFWs in Ontario.
Section 8 of the EPFNA sets out that:
No employer shall directly or indirectly recover or attempt to recover from a foreign national or from such other persons as may be prescribed,
- any cost incurred by the employer in the course of arranging to become or attempting to become an employer of the foreign national; or
- any other cost that is prescribed.
Accordingly, with limited exceptions, employers cannot charge TFWs for any fees or costs incurred in hiring them.
The EPFNA also requires that employers provide prescribed information on the EPFNA to current TFWs and any future TFW hires. The Ministry of Labour guideline to employers confirms that if an employer does not use a recruiter, it must before employment commences, provide the prospective TFW hire with the Ministry of Labour's prescribed information sheet which sets out the TFWs rights under the EPFNA.
This requirement is in addition to the requirement under Ontario's Employment Standards Act, 2000 (ESA), to provide all employees with a poster setting out their basic rights under the ESA. Copies of the ESA poster are available from the Ontario Ministry of Labour website.
If the employer employed a TFW as of November 20, 2015, the employer must ensure that they provide the prescribed information sheet under the EPFNA to the TFW.
Section 14 of the EPFNA also sets out the employer's duty to keep and retain records, which coincide with employers' existing record keeping obligations under the ESA.
The changes are intended to enhance the protection of TFWs in Ontario and to ensure that employers do not claw back or otherwise collect from their TFWs amounts that the employer paid in the course of arranging to become the employer of the foreign national.
Employers who may be affected by the EPFNA should review the full legislation, and also the employer information brochure issued by the Ontario Ministry of Labour.
Implications of EPFNA for Employers
The EPFNA is Ontario legislation, and as noted above, applies to TFWs working in Ontario and foreign nationals who may be recruited to work in Ontario.
The implications of the EPFNA include the following:
- If an employer is hiring foreign nationals in Ontario, the employer must make sure that the prescribed brochure is provided prior to the start of work. This means building into your hiring or on-boarding process the provision of the EPFNA prescribed information (along with any other prescribed information such as the general rights brochure under the ESA).
If the foreign national's first language is not English, the employer has an obligation to find out if there is an information sheet from the Ministry of Labour in the foreign nationals first language and provide that version as well as the English language version.
Employers found not to be in compliance with this requirement under the EPFNA may receive a compliance order or notice of contravention from an employment standards officer. Further non-compliance may result in the Ministry of Labour commencing a prosecution under the Provincial Offences Act.
- If you have TFWs in Ontario who were working for you as of November 20, 2015, you need to provide the prescribed EPFNA information brochure to them to be compliant.
- It is clearly illegal for an employer to try to "directly or indirectly recover or attempt to recover any cost incurred by the employer in the course of arranging to become the employer of the foreign national". Therefore, if the employer pays the cost of the work permit or supports the process by paying legal fees or other disbursements (such as translation of documents) to support a work permit application for a foreign national who would work in Ontario, the employer cannot try to recover those costs later. The only exception to this is a regulatory exemption in the EPFNA that some costs may be recovered by employers hiring foreign nationals under the Seasonal Agricultural Worker Program.
Therefore, employers hiring foreign nationals in Ontario should not utilize so called "claw back" agreements where the employer has the TFW sign an agreement stating that if the foreign national leaves within a certain time period, they are be responsible for paying back all or part of the employer's out of pocket expenses relating to obtaining the work permit.
Employers should review their current practices and ensure that they are not using such agreements and or they do not have such terms in any of their employment agreements.
- Employers may need to review their documentary retention practices to ensure that the provisions of the EPFNA are met.
Additional Implications under IRPA
The last section dealt with some of the direct implications of the EPFNA provisions.
However, employers should also be aware that there is a second tier of potential issues, under IRPA.
IRPA places a number of conditions on employers hiring TFWs. This includes the condition that "during the period of employment for which the work permit is issued" to a TFW, "the employer must comply with the federal and provincial laws that regulate employment, and the recruiting of employees, in the province in which the foreign national works".
In addition to the statutory requirement noted above, any time an employer signs an LMIA application, or uploads an offer of employment for a LMIA-exempt work permit, the employer is representing and declaring to the Canadian government that they are compliant with, and will comply with, all applicable federal and provincial laws relating to employment and recruitment.
Therefore, if an employer fails to abide by the provisions of the EPFNA, for example by failing to provide the prescribed EPFNA brochure, there is a potential that this is a breach of the statutory requirements under the IRPA, which could lead to administrative penalties or affect an employer's future ability to utilize TFWs.
This is further incentive for employers to ensure that all obligations under the EPFNA are met. As noted above, employers should review the legislation and Ontario Ministry of Labour's information to bring themselves into compliance and to develop best practices and policies to ensure ongoing compliance (such as ensuring the provision of the EPFNA information is built into the hiring process for future foreign national hires).
Conclusion
Ontario's amendments to the EPFNA impact employers that engage or who are seeking to hire foreign nationals in Ontario.
Employers must ensure that they are aware of the requirements under the legislation, not only to ensure compliance under the EPFNA itself, but also to ensure compliance under IRPA's statutory condition that employers engaging TFWs must comply with, and not violate, any of the applicable federal or provincial employment or recruiting legislation.
If assistance is required, please contact a member of the firm's Immigration or Employment Law groups.