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Manitoba's Worker Recruitment and Protection Act (WRAPA) contains strong protections for foreign workers. Those protections also create important legal risks for employers who hire foreign workers or use third parties to recruit on their behalf.
One of WRAPA's prohibitions is that foreign workers cannot be charged any fees to obtain a job in Manitoba.
A recruiter cannot charge a worker directly. Further, an employer cannot pay a recruiter's fee and then recover that cost from the worker.
What may not well known and potentially very serious is what can happen when an employer unknowingly uses an unlicensed recruiter who charges a worker an illegal fee.
Under WRAPA, the worker may be entitled to recover that illegal fee from the employer, even if the employer had no knowledge of the recruiter's misconduct and received no benefit from it.
These fees are not trivial. In some cases, they can reach tens or even hundreds of thousands of dollars.
In this article, we explain how WRAPA's liability framework works and outline practical steps employers can take to reduce the risk of being held responsible for a unlicensed recruiter's illegal conduct.
1. What is Foreign Worker Recruitment under WRAPA?
WRAPA adopts a broad understanding of foreign worker recruitment. Recruitment generally includes any effort to seek out, locate, refer, or assist a foreign national in obtaining employment in Manitoba.
This can include:
- Identifying or soliciting foreign workers
- Assisting a worker to secure employment
- Referring a worker to an employer
- Facilitating interviews or job offers
- Assisting with immigration steps connected to employment
Importantly, recruitment is not limited to formal "recruiters." Consultants, agents, and third parties acting on the employer's behalf may all fall within this definition. Even informal recommendations at a dinner party can trigger WRAPA.
It also does not matter whether there was a formal contract or whether fees were paid to the "recruiter."
2. The Prohibition on Charging Recruitment Fees Under WRAPA
A cornerstone of WRAPA is worker protection. WRAPA is intentionally designed to place responsibility on employers, recognizing that they are often best positioned to prevent exploitation in the recruitment process.
Charging recruitment fees to foreign workers is prohibited. This applies whether fees are charged:
- Directly by the employer; or
- Indirectly by a recruiter or third party acting on the employer's behalf.
3. The Unlicensed Recruiter Problem
Here is where many employers get caught off guard:
If an unlicensed recruiter charges a foreign worker an illegal fee, WRAPA gives the regulator the power to require the employer to repay that fee to the worker.
In practice, the employer is often the easier party for the regulator to pursue. The employer is usually located in Manitoba and subject to local enforcement, while the unlicensed recruiter may be difficult to locate, identify, or collect from.
Beyond the risk of financial liability, other potential consequences can include:
- Administrative penalties
- Heightened scrutiny in the future by the regulator
- Reputational Harm
4. Manitoba Employers Can Protect Themselves
If you hire foreign workers in Manitoba, WRAPA compliance should be part of your risk management strategy.
- Be extra diligent when using a recruiter; ensure they are registered with WRAPA
- Use written agreements prohibiting fees from being charged to the foreign worker
- Communicate "no-fee" policies to workers
- Monitor overseas recruitment activity
- Keep records showing due diligence
WRAPA is designed to protect foreign workers – so it places a real responsibility on employers.
In particular, make sure the recruiter is licensed. Employment Standards Manitoba maintains an online list of individuals who hold a valid licence to engage in foreign worker recruitment. As long as the recruiter is licensed, then if they happen to illegally charge a fee to a worker who an employer employs, the employer is insulated from being liable for the fee. The link to the list of licence holders can be found here.
Overall, what is the safest approach? Treat recruitment compliance seriously, because when it comes to recruitment fees and foreign workers, employer liability could cost tens to hundreds of thousands of dollars.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
