All occupation classes, regardless of shortages, now subject to same recruitment guidelines
In light of the economic downturn, the federal government has made several changes to the temporary foreign worker program. As long as employers incorporate these changes into the recruitment process, they will still benefit from this program.
LMO criteria
To bring in a temporary foreign worker, an employer must first obtain a labour market opinion (LMO) from Human Resources and Social Development Canada (HRSDC). The key criteria for the LMO, which are unchanged, depend on:
• whether the employment of the foreign national is likely to result in direct job creation or job retention for Canadian citizens or permanent residents
• whether the employment of the foreign national is likely to result in the creation or transfer of skills and knowledge for the benefit of Canadian citizens or permanent residents
• whether the employment of the foreign national is likely to fill a labour shortage
• whether the wages offered to the foreign national are consistent with the prevailing wage rate for the occupation and whether the working conditions meet generally accepted Canadian standards
• whether the employer has made, or has agreed to make, reasonable efforts to hire or train Canadian citizens or permanent residents.
The changes are intended to standardize and provide clearer guidelines both for employers and officers evaluating LMO requests.
Recruitment requirements
HRSDC has replaced the provincial occupations-under-pressure lists with a new national advertising standard. All occupations are now subject to the same minimum advertisement requirements based on the national occupational classification (NOC) system: Skill levels O, A, B, C and D.
“O” occupations include those in executive levels while “A” occupations include both management and professional positions. Both usually require a university degree and include professional occupations such as engineers, financial analysts, computer systems analysts and pharmacists.
For these occupations, an employer must advertise on the national job bank or conduct similar recruitment activities consistent with the practice within the occupation (such as Internet advertising) for at least 14 calendar days during the three months prior to the date on which an LMO application is filed. These guidelines represent little change.
“B” occupations are generally technical occupations requiring two years of post-secondary education training at a college or apprenticeship. For these jobs, an employer must advertise on a national job bank for at least 14 calendar days during the three months prior to the date upon which an LMO application is filed. However, if the employer normally uses another appropriate recruitment tool such as Internet advertising, the minimum requirements will be satisfied.
The ad must include the employer’s name, business address and a clear statement of wages being offered. This requirement has attracted considerable controversy, as employers are often reluctant to specify wages offered.
“C” and “D” occupations are those that generally require only high school or occupation-specific training. For these, an employer must, in addition to all the minimum recruitment efforts required for the other occupations, demonstrate reasonable ongoing recruitment efforts to recruit from communities that traditionally face barriers to employment, such as Aboriginal peoples and older workers.
Proof of advertisement
As part of the LMO process, an employer must be prepared to demonstrate it meets the advertising requirements by providing proof of advertisement and the results of its efforts to recruit Canadians or permanent residents, such as information on the qualifications of Canadian applicants and why they were rejected. Records of the employer’s efforts should be kept for at least six years, according to Service Canada.
Prior to these changes, the occupations-under-pressure list for each province provided guidance to employers as to recruitment responsibilities, with minimal recruitment required. Essentially, the occupations listed had to be posted on the national job bank or some other appropriate recruitment tool for seven days.
At present the wage rate must be specified in the advertisement for B, C and D skill levels. A range can be used, provided the low end is the prevailing wage rate. HRSDC has indicated there may be some flexibility under specific circumstances for avoiding advertising a wage rate. Employers must negotiate these exemptions with HRSDC at regional and national headquarter levels.
If the minimum recruitment obligation is satisfied, the officer should normally not require additional recruitment efforts. The recruitment efforts must demonstrate no suitable Canadian citizen or permanent resident has applied for the position.
These new guidelines will apply to initial LMO applications. There has been some confusion as to the recruitment obligation imposed on employers for extension applications. At present, HRSDC is treating the extension as if it is a new LMO application — it is subject to the minimum recruitment criteria. It is, however, up to the employer to show an employee is critical to the business operation and avoid the recruitment requirement.
These guidelines only address the employer’s demonstrated recruitment efforts, which is only one factor considered by Service Canada. The key criteria listed above are still important in the ultimate decision.
Layoffs
If an employer has laid off Canadians or permanent residents it does not, in and of itself, result in the refusal of an LMO application. The officer is required to determine whether the position for which the LMO has been requested could have been assumed by or offered to laid-off employees of the company — which may have no impact on the particular application.
Employers must develop a recruitment strategy early in the temporary worker process to ensure the advertising and recruitment is completed within the three-month period prior to filing for an LMO.
