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Changes to the Labour Market Opinion Process

Changes to the Labour Market Opinion Process

Effective December 31, 2013, some important revisions were introduced to the LMO application process.

1) Employers must comply with new conditions and attest to the same.  Starting December 31, 2013, employers will be required to complete updated LMO application forms that include modified questions and additional attestations. Under these new conditions, employers must:

  • Retain any document that relates to employer compliance with working conditions for a period of six years. This period begins with the first day of employment of a foreign worker on a temporary work permit. For this same period, the employer must be able to demonstrate that information they provided on their LMO application is accurate.
  • Make a reasonable effort to ensure that their workplace is free from employee abuse.
  • Hire or train Canadian workers, or make reasonable efforts to this extent, if this was a factor that led to work permit issuance.

2) ESDC and Service Canada will have the authority to conduct inspections to ensure that employers are complying to work permit regulations. This authority will last for a period of 6 years (rather than 2 years as previously mandated), starting from the first day of a worker’s employment by their employer.

  • During an inspection, employers may be asked to demonstrate that they have complied with Federal and Provincial labour conditions and/or conditions set out in their LMO. Inspectors may:
    • Request documents to prove compliance;
    • If an employer is determined to be non-compliant, they will:
      • Be deemed ineligible to hire foreign workers for two years;
      • Have their name, address, and ineligibility published on a public list;
      • Be issued negative LMOs on any pending applications; and
      • May have previously issued LMOs revoked.
    • Conduct on-site inspections without a warrant; and
    • Interview foreign workers or Canadian employees, by their consent.

3) ESDC may now suspend or revoke LMOs, or refuse to process LMO applications, under public policy considerations. Employers whose LMOs may be suspended or revoked will be contacted and given an opportunity to address concerns.

 

EMPLOYERS RESPONSIBLE FOR WAGE COMPLIANCE

As previously outlined, employers are now required to complete updated LMO application forms that include modified questions and additional attestations.  As part of the attestations, employers must agree to comply with the prevailing wage requirements.  Furthermore, employers agree to review and adjust, when applicable, the foreign worker(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.

Until December 31, 2013, employers also were required to attest to the following:

“I will immediately inform Service Canada/Temporary Foreign Worker Program officers of any subsequent changes related to the temporary foreign workers’ terms and conditions of employment, as described in the Labour Market Opinion confirmation letter and annex.”

Although the aforementioned attestation is no longer included in the new LMO application forms, we strongly recommend that Service Canada be advised when a wage increase is proposed in order to mitigate risk.  Additionally, any change that may cause a deviation from what was approved on the Annex is subject to a request for justification from Service Canada, so we encourage employers to carefully review the conditions of any employee currently employed on an LMO to ensure full compliance at this time.

Please contact us with any questions regarding these changes and we will make every effort to assist in these matters.

Written by Stephanie Lebaron

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