Wednesday, June 15, 2011

Canada: Important Changes in Foreign Worker Recruitment

By Sergio Karas

On August 18, 2010, the Minister of Citizenship and Immigration announced significant changes that affect employers hiring foreign workers. These changes took effect on 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, authorizing employers to hire temporary foreign workers in the appropriate circumstances. Labour Market Opinions (LMOs) attempt to ensure that hiring temporary foreign workers does not affect negatively the Canadian labour market. Before issuing a LMO, a HRSDC officer must be satisfied that the presence of the foreign worker will have 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 that, 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.

The changes are generally meant to prevent the perceived abuse of the Temporary Foreign Worker Program by some unscrupulous employers. The changes 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, 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 a 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 officer.

The regulatory changes 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 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 competent 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 the 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 that both employers and employees obtain the appropriate legal advice when hiring foreign workers under the new regime.

Sergio Karas, certified specialist in Canadian Citizenship and Immigration Law. Mr Karas 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 (