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FAQs: Employment Protection for Foreign Nationals Act, 2009

General

When did the EPFNA become law?

The Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others), 2009 came into force on March 22, 2010. That legislation applied only to foreign nationals who were employed or seeking employment as live-in caregivers in Ontario. The legislation was amended and renamed the Employment Protection for Foreign Nationals Act, 2009 effective November 20, 2015. The change in the legislation expanded the application to all foreign nationals who are employed or seeking employment in Ontario pursuant to an immigration or foreign temporary employee program.

Who enforces the EPFNA?

The EPFNA is enforced by the Ministry of Labour's Employment Standards Officers.

Who is covered by the EPFNA?

The EPFNA applies to foreign nationals who work or are seeking work in Ontario pursuant to an immigration or foreign temporary employee program (foreign nationals), to employers of foreign nationals working in Ontario pursuant to an immigration or temporary employee program (employers), to persons who act as recruiters in connection with the employment of foreign nationals in Ontario pursuant to an immigration or foreign temporary employee program (recruiters), and to persons acting on behalf of these employers or recruiters. See 'Definitions' section.

What key rights and obligations does the EPFNA create?

The EPFNA:

  • prohibits recruiters from charging any fees to foreign nationals, either directly or indirectly.
  • generally prevents employers from recovering or attempting to recover from the foreign national any cost incurred in arranging to become the foreign national’s employer.
  • prohibits employers and recruiters from taking a foreign national’s property, including documents such as a passport or work permit.
  • prohibits a recruiter, an employer, or a person acting on their behalf from intimidating or penalizing a foreign national for asking about or asserting their rights under the EPFNA.
  • requires recruiters and, in some situations, employers to distribute information sheets to foreign nationals setting out their rights under the EPFNA and those provisions of the Employment Standards Act, 2000 (ESA) considered to be of particular relevance.

Are foreign nationals covered by the EPFNA also covered by the ESA?

Yes, the ESA generally applies to all employees working in Ontario, including foreign nationals. The ESA is a law that sets minimum standards in most Ontario workplaces, such as hours of work, public holidays, and termination and severance. Special rules and exemptions apply to certain employees. For more information, visit Your Guide to the Employment Standards Act, 2000.

Where a provision in an employment contract or collective agreement gives an employee a greater right or benefit than the minimum standard under the ESA, then that provision applies.

Can an employer ask the foreign national to give up his or her rights?

No. A foreign national cannot agree or sign a contract with a recruiter, employer or anyone acting for a recruiter or an employer, to give up any rights under the EPFNA or the ESA. Any such agreement is invalid. For example, if a foreign national signs a contract allowing a recruiter to charge a recruitment fee, the agreement would be invalid.

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Filing a Claim

What do I do if I think someone has violated the EPFNA?

If you are covered by the EPFNA and you want to make a complaint, you can download a claim form or file a claim online. You can also obtain a hardcopy from ServiceOntario Publications online or by calling 1-800-668-9938; Hearing Impaired TTY 1-800-268-7095.

Please note the EPFNA has its own claim form distinct from that which is used for ESA claims.

Are there time limits for filing a claim?

Yes, you can file a claim within three and one half (3.5) years from the date the violation occurred.

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Definitions

Who does the law consider to be a recruiter?

Under the EPFNA, a person is considered to be acting as a recruiter:

  • if the person finds, or attempts to find, an individual for employment;
  • if the person finds or attempts to find employment for an individual;
  • if the person assists another person in doing any of the things described in the first two bullets; or
  • if the person refers an individual to another person to do any of the things described in the first two bullets.

Who does the law consider to be a foreign national?

Under the EPFNA, a foreign national is someone who is not:

  • a Canadian citizen, or
  • a permanent resident within the meaning of the federal Immigration and Refugee Protection Act .

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Protective measures

What is the law regarding charging a foreign national fees for recruitment?

A recruiter (or a person acting on his or her behalf) cannot charge a foreign national any fees for any service, good or benefit provided to the foreign national. For example, a recruiter cannot charge a fee for getting a job, for the Labour Market Impact Assessment or anything else required for the foreign national to begin work in Ontario.

What is the law regarding the recovery of costs from a foreign national?

Generally, the EPFNA prohibits employers from recovering, directly or indirectly, recruitment fees or any other costs they incurred in connection with becoming or attempting to become an employer of the foreign national. For example, the employer cannot recover the fee it paid to a recruiter for the placement of a foreign national. However, there is one exception to this general rule: as of November 26, 2015, employers who employ foreign nationals under the federal government’s “Seasonal Agricultural Worker Program” (SAWP) can recover the costs of air travel and of work permits if the deductions are allowed under the SAWP employment contract.

Can an employer or recruiter take or retain property of a foreign national?

No. A recruiter, employer (or a person acting on their behalf) cannot take or keep property, including a passport or work permit, of a foreign national.

What specific information must be provided by recruiters or employers to foreign nationals?

Recruiters are required to provide the latest version of information documents published by the Ministry of Labour to prospective foreign national employees as soon as possible after making first contact. If the Director of Employment Standards has published different documents for different categories of foreign nationals, the relevant documents must be provided.

If the foreign national’s first language is not English, the recruiter must find out if the information sheet is available in that language, and if so, the recruiter must supply both the English version and the translated document. These information sheets are available at the EPFNA site.

If an employer has hired a foreign national without the use of a recruiter, the employer is responsible for providing the documents described above before the employment commences.

If the foreign national was already working for the employer when the expanded EPFNA came into force (November 20, 2015), the employer must provide the relevant documents to the foreign national.

There are two information sheets that must be provided to foreign nationals:

What types of records are recruiters and employers required to keep under the EPFNA?

A recruiter is required to record:

  1. the name of the foreign national
  2. the name and address of each employer or potential employer for whom the recruiter found or attempted to find or with whom the recruiter placed or attempted to place a foreign national
  3. the amount of any money paid to the recruiter by the employer
  4. the date of payment, and
  5. the reason for payment.

An employer is required to record:

  1. the name and address of any person to whom the employer made a payment for finding the foreign national employment
  2. the date of payment, and
  3. the amount of the payment.

Note that an employer also has record keeping obligations in the ESA.

Are there provisions in the EPFNA to ensure that employees who assert their rights under the legislation are not penalized?

Yes.  A recruiter, an employer, or a person who acts on their behalf is prohibited from intimidating or penalizing a foreign national because the foreign national:

  • asks any person to comply with the EPFNA or the ESA,
  • asks about his or her rights under the EPFNA or the ESA,
  • exercises or attempts to exercise a right under the EPFNA or the ESA, or
  • files a complaint under the EPFNA or the ESA, or
  • gives information to an employment standards officer, testifies or participates in a proceeding under the EPFNA or the ESA.

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Disclaimer: This resource has been prepared to help you understand some of the minimum rights and obligations established under the Employment Standards Act, 2000 (ESA) and the Employment Protection for Foreign Nationals Act, 2009 (EPFNA). It is not legal advice. It is not intended to replace the ESA, EPFNA or their regulations and reference should always be made to the official version of the legislation. Although we endeavor to ensure that the information in this resource is as current and accurate as possible, errors do occasionally occur. The ESA provides minimum standards only. Some employees may have greater rights under an employment contract, collective agreement, the common law or other legislation. You may wish to obtain legal advice.