Employers need to be looking at their complement of foreign workers and deciding 'Can I make do without them?' says lawyer, offering tips for HR
With legislation around hiring foreign temporary workers and international students constantly in flux, employers should prepare to rely less on foreign labour to fill their job vacancies, say experts.
“The government is very carefully now looking at the number of foreign workers in Canada,” says Barbara Jo Caruso of Corporate Immigration Law Firm in Toronto.
“I think all employers need to be looking at their own complement of foreign workers, and really deciding, ‘Can I make do without them?’”
“There will certainly be a more strenuous review of applications, especially under the Temporary Foreign Worker program, where there is a labour test that the employer has to go through.”
Employers must make ‘bona fide’ efforts to hire Canadian permanent residents first
Immigration Minister Marc Miller recently stated in a Bloomberg interview that Canadian industries have gotten “addicted to temporary foreign workers […] Any large industry trying to make ends meet will look at the ability to drive down wages. There is an incentive to drive labour costs down.”
The statement is a turnaround from previous years’ increases in immigration, but regardless of the reason, the government will be cracking down, Caruso says, so employers should be ensuring their processes around hiring are sound.
Plus, new requirements for Ontario recruitment agencies will make hiring temporary foreign workers even tricker.
“Employers have become ‘addicted’ to foreign workers... I think that was a really unfair comment against employers,” Caruso says. “You can't discriminate. You don't know... until you onboard them, after you've made them an offer, you may not know with certainty what their citizenship is.”
The key legal term is “bona fide”, says Jae-Yeon Lim, associate immigration lawyer with Harris & Company in Vancouver, meaning employers need to demonstrate a bona fide effort to employ Canadian permanent residents before hiring foreign labour.
Read on Lexpert: The basics of immigrating to Canada
“Bona fide means genuine, genuine efforts to really hire somebody who is Canadian and a permanent resident,” Lim says.
"If they meet the requirements, then you have to interview them, you have to genuinely consider them for the job before you give that job to a foreign worker. That's the basis of these programs."
Penalties for hiring temporary foreign workers
The penalties for hiring temporary foreign workers illegally can be prohibitive and high enough to put small businesses into bankruptcy, says Lim, and employers often make mistakes that can land them in trouble.
“Employers can be fined tens of thousands of dollars, and can be penalized and get accumulated penalty points,” Lim says, adding that employers can also be banned from hiring foreign workers, be blacklisted, and even serve jail time.
Plus, if positions are paid below the median provisional wage, employers must demonstrate that they have made genuine efforts to hire from underrepresented groups such as Indigenous, youth, disabled and newcomers to Canada.
“That's recently been updated to include asylum seekers,” she says. “They usually have to provide some rationale, and there's also very stringent requirements on the actual job requirements.”
Caring for temporary foreign workers after hire
Considerations for employers around hiring newcomers to Canada aren’t only about hiring, says Manon Poirier, executive director of the Ordre des conseillers en ressources humaines agréés du Québec.
In response to new data from CNESST showing an increase in occupational injuries to foreign workers in Quebec, the organization called on the federal government last week to address the vulnerability of foreign workers on closed work permits to violence in the workplace.
Immigration, Refugees and Citizenship Canada (IRCC) have implemented a temporary and non-renewable open work permit for foreign workers who are experiencing violence at work or are at risk of violence at work.
However, the processing time for those applications is 52 days – too long for many, says Poirier, meaning this is where employers should step in with better training, and fewer assumptions about how new workers adapt to procedures.
“[It’s about] taking extra care in the training portion before they start to work, to make sure that they know how to use the tools, what are the procedures, the security, they understand all of that, because otherwise they get hurt. And most of the time we can prevent that by appropriate training.”
Be transparent with employees about hiring foreign workers
At the employment level, it’s important for HR and employers to understand that a key factor in reducing vulnerability for foreign workers in the workplace is by preparing existing staff for their arrival, Poirier says.
This includes training about sensitivity around values, cultural differences, and especially language barriers.
“It seems obvious, but there's a lot of organizations that welcome foreign temporary workers, but don't get their own organization ready, the other employees, and make sure that it's a positive experience for everybody.”
She adds that employers should be sharing with current employees why the decision was made to hire foreign workers; to mitigate any resentment or misgivings around incoming foreign workers, transparency around the reasoning and the process leading up to the hires is necessary.
“Sometimes, people are so caught up in the process and the paperwork, and the time it takes, and then they forget to prepare their own staff,” says Poirier.
“Even the decision of welcoming foreign temporary workers, sometimes it's not clear to everybody. As management, you understand that you're lacking a resource, as HR you know you've tried to recruit locally and it was not possible […] So being a bit more transparent with your business to all staff, so they understand the reason why these people come, then they can set up positively for when they actually arrive.”
