Asking foreign worker to sign a bond to stay

Employment agreement requires compensation in addition to notice if employee resigns

Question: Can an employer ask a new employee recruited in another country to work in Canada to sign a bond that stipulates the employee would pay compensation to the employer if he quit, in addition to a specified amount of notice?

Answer: All foreign workers, including temporary workers, have the same rights and protections as Canadian workers, meaning a foreign worker may change employment at any time while in Canada. An employer cannot differentiate between Canadian and foreign workers by requiring a foreign employee to provide the employer with compensation should she choose to leave her employment.

Hiring foreign workers temporarily or supporting the immigration of a skilled worker to become a permanent resident in Canada can be a complex, expensive and timely process. The reality of the situation, however, is that once a foreign employee arrives in Canada, there is no guarantee she will remain employed with that particular employer.

To protect itself from a situation such as this, it is important for an employer, as part of the recruitment process, to do its due diligence on a foreign employee, similar to what would be done for a Canadian worker. This includes reviewing resumes, reference letters, familiarizing the employee with the organization and ensuring she is willing to work in the location of the business.

There are many government departments who work together to ensure the employment of foreign workers responds to labour demands, while simultaneously protecting foreign employees from exploitation by employers. Recently, the Government of Canada has proposed several initiatives which are designed to, among other things, implement stricter employer monitoring mechanisms in order to encourage greater adherence to the fair treatment of foreign workers. As a result, it is important every employer treat all foreign workers in the same manner as they treat Canadian employees. Employers cannot ask a foreign worker to sign a bond that stipulates the employee to pay compensation to the employer if she quits, if this same practice is not exercised with other Canadian employees. If all employees are required to sign such a bond, it would be important to review the specific terms and conditions surrounding that approach with local legal counsel to ensure it does not run afoul of employment standards legislation.

Additional information on hiring foreign workers in Canada is available online at: http://www.hrsdc.gc.ca/eng/workplaceskills/foreign_workers/
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Brian Kenny is a partner with MacPherson Leslie and Tyerman LLP in Regina. He can be reached at (306) 347-8421 or bkenny@mlt.com.

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