Hiring foreign workers: A brave new world

Protecting the domestic labour force

New regulations under the Immigration and Refugee Protection Act applicable to temporary foreign workers in Canada will come into effect on April 1, 2011. These regulations impose new restrictions and rules for the employment of temporary foreign workers, so it’s important for employers who have or are looking to hire temporary foreign workers to be aware of what obligations they will have under the new regime.

Immigration lawyer Sergio Karas has been following the development and implementation of the regulations and provides his assessment of the changes and what employers must do to ensure compliance.

Employers who hire foreign workers to work for them in Canada should take heed: Things are about to change.

On Aug. 18, 2010, Canada’s Minister of Citizenship and Immigration announced significant changes that affect employers hiring foreign workers. These changes will take effect as of April 1, 2011.

The Temporary Foreign Worker Program is jointly administered by Human Resources and Skills Development Canada (HRSDC) and Citizenship and Immigration Canada (CIC). However, HRSDC is responsible for issuing Labour Market Opinions (LMOs), authorizing employers to hire temporary foreign workers in the appropriate circumstances.

LMOs attempt to ensure that hiring temporary foreign workers does not negatively affect the Canadian labour market. Before issuing an LMO, a HRSDC officer must be satisfied that the presence of the foreign worker will have only a neutral or positive impact on the Canadian labour force. Many other factors influence the issuance of LMOs, including whether the employer has made reasonable efforts to hire a Canadian, advertised the position in accordance with the minimum advertising guidelines issued by HRSDC, whether there is a labour dispute in the business, and whether the employer is offering the appropriate wages and working conditions when seeking to employ a foreign worker.

Over the last few years, given the increasing demand for foreign workers in Canada, especially in selected technical occupations, the federal government has sought to ensure that Canadians are not displaced in favour of foreign workers and, at the same time, foreign workers are treated fairly and equitably. To that end, many initiatives were pursued by the federal government, some in partnership with the provinces.

Preventing abuse of the program

The changes that will take effect on April 1, 2011, are generally meant to prevent the perceived abuse of the Temporary Foreign Worker Program by any unscrupulous employers. The changes will include:

•A more rigorous assessment of the genuineness of the job offer.

•A two-year prohibition from hiring temporary foreign workers for employers who fail to meet their commitments to workers with respect to wages, working conditions, and occupation.

•A limit on the length of time a temporary foreign worker may work in Canada before returning home.

Employers seeking to hire foreign workers, including live-in caregivers, will now have to demonstrate that the job offer is genuine. This may prompt HRSDC officers to engage in further investigations, sometimes contacting the employer directly and other times relying on information gathered from prior applications made by the same employer. In addition, employers will be assessed against past compliance with Temporary Foreign Worker Program requirements before an LMO will be granted, and those employers who are found to have violated worker rights may be refused authorization to hire a foreign worker.

This raises interesting questions as it is unclear how far HRSDC officers will go in their investigations or what type of violations could be considered sufficiently serious to deny an employer the right to hire a foreign worker. Possible red flags could include complaints filed against the employer by previous foreign workers, violations of health and safety standards, early terminations of other foreign workers on a routine basis and, potentially, other patterns of behavior shown by employers. The question of whether or not a job offer is genuine will be much harder to determine, as many employers who use the Temporary Foreign Worker Program, particularly in the construction industry, are sometimes related to the foreign worker and they use that program as a stepping stone to gain permanent residency. Other relevant factors to monitor for possible violations could include variations in wages due to performance, temporary lay-offs or periods without earnings. No doubt, such details may raise concerns with HRSDC officers.

Employers can get suspended from the program

The regulatory changes will add a new administrative penalty against employers: where an employer is found not to have complied with previous commitments to other foreign workers, it may be denied access to the Temporary Foreign Worker Program for the period of two years. In addition, offending employers’ names will also be published on the Citizenship and Immigration Canada website, purportedly to inform other temporary foreign workers of the “danger” associated with a particular employer. Employers will be given the opportunity to explain any mitigating circumstances before such action is taken, but this could probably open an avenue for litigation by employers who feel aggrieved at being “blacklisted.”

The proposed changes do not only affect employers; a new four-year cumulative limit is also being imposed on most temporary foreign workers employed in Canada. After a four-year term, they will have to wait a further period of four years outside of Canada before becoming eligible to again work temporarily in Canada. The limit does not affect eligibility for permanent residence, so it would be prudent to file applications for that purpose as soon as legally allowed. Foreign workers may qualify under the Canadian Experience Class or as Federal Skilled Workers with Arranged Employment. Prudent employers who value the services of their foreign workers should consult with legal counsel to determine the potential eligibility of their foreign workers to apply for permanent residency. In addition, it must be noted that the four-year limit does not affect foreign workers who enter Canada under the terms of an international agreement such as NAFTA. Those workers will continue to be governed by the terms of the appropriate treaty.

The potential consequences of employer misconduct under the new regulatory changes are very serious; also the consequences for foreign workers who will be close to reaching the four-year limitation can also create considerable disruption in their lives. It is essential both employers and employees are ready for the new regime and obtain the right information and legal advice when hiring foreign workers.

Sergio R. Karas is a certified specialist in Canadian citizenship and immigration law by the Law Society of Upper Canada. He is past chair of the Ontario Bar Association Citizenship and Immigration Section, past chair of the International Bar Association

Immigration and Nationality Committee and editor of the Global Business Immigration Handbook. He can be reached at (416) 506-1800 or [email protected].
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