More rigorous regime for employers of temporary foreign workers

March 02, 2014 - by: Gilda Villaran 0 COMMENTS

By Gilda Villaran

As we have repeatedly reported, there have been many changes to Canada’s immigration program in the past year. So many, in fact, that it has been hard to keep track of all the new legislative and regulatory amendments and new administrative measures.

Yet another important change to the Temporary Foreign Workers Program came into effect on December 31, 2013 — one that can’t be overlooked by employers of temporary foreign workers. This is the amendment of the Immigration and Refugee Protection Regulations.

Why the changes?

According to the Canadian government, the objectives of the amendments to the Immigration and Refugee Protection Regulations are twofold:

  • To protect “the integrity of the Canadian labour market” and
  • To protect temporary foreign workers from abuse or exploitation.

In simple words, that means that the regulations aim to make it tougher and more costly for Canadian employers to hire foreign workers. Hiring a foreign worker should be a “last resort.”

Changes

Among several other changes, the amended regulations bring about a more rigorous compliance and inspection regime. In practical terms, they entail:

1. An obligation for Canadian employers to retain records for a period of six years. Employers should be prepared to demonstrate that any information that they provided in relation to a Labour Market Opinion (LMO) application and/or a work permit application was accurate. Until 2014, compliance reviews went back two years in time. They can now go back six years.

Worse yet, when an employer applies for a Labour Market Opinion or a person applies for a work permit, Employment and Social Development Canada (ESDC, the new name of Human Resources and Skills Development Canada) and Citizenship and Immigration Canada (CIC) may now verify the wages, working conditions, and occupations provided to previously employed temporary foreign workers during the six-year period prior to the application. And that verification involves all foreign workers, including those who no longer work for the employer. So, in short, keep your records.

2. A new standard of employer compliance. The assessment of an employer’s compliance with previous offers of employment (concerning all foreign workers) is done with respect to the same three elements as before — (a) occupation, (b) wages, and (c) working conditions. Prior to 2014, employers had to demonstrate that these three elements were “substantially the same” as those offered in the offer of employment. Now, employers must also demonstrate that the occupation, wages, and working conditions are “not less favourable” than those offered at the time the person was hired.

Ironically, the addition of the “not less favourable” qualification means that ESDC and CIC are not going to tolerate an improvement of conditions. A promotion of the foreign worker, a considerable increase of his wages, or a very favorable change of working conditions may mean trouble for an employer.

How does this protect the foreign workers from exploitation? It doesn’t. But, in the view of our government, this protects the Canadian labor market, which is the other objective of the changes. So employers have to be very careful that they don’t modify the position, wages, or working conditions of foreign workers. Not for better and not for worse. If a change needs to be made, the employer should communicate with ESDC, who will decide whether the changes constitute a substantial change that requires new advertisement of the position.

3. New conditions imposed on Canadian employers. If they become subject to an inspection, employers have to be prepared to demonstrate that they have met any conditions imposed at the time an LMO was approved:

a) Direct job creation or job retention of Canadian citizens or permanent residents, if this was a factor that was considered at the time of issuance of the LMO;

b) The development or transfer of skills and knowledge for the benefit of Canadian citizens or permanent residents, again if this was one of the factors that led to the issuance of the LMO;

c) Reasonable efforts to hire Canadians or permanent residents; and

d) Compliance with federal and provincial laws that regulate employment and the recruiting of employees in the respective province.

Again, for six years, employers should retain any document that relates to compliance with any of these conditions.

4. Substantially increased inspection authority. CIC and ESDC now have the authority to conduct inspections — to enter and inspect any premises where a foreign worker works — to verify compliance with the conditions described above. They also have the authority to require an employer to provide documents and to report at any specified time and place in order to answer questions. An inspection can be triggered either by any of:

a) CIC or ESDC having reasons to suspect the employer is not or has not been compliant;

b) Previous noncompliance; or

c) Random selection of an employer.

During the inspection, the inspectors can interrogate the employer or “any person” employed by the employer. CIC and ESDC do not need a warrant to enter the premises except when the workplace is a dwelling house.

In sum, Canadian employers of foreign workers have to increase the attention they pay to their compliance with terms of employment offers and carefully review their document-retention policies.

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