Employers will risk being publicly “blacklisted” by Citizenship and Immigration Canada (CIC) if they are found to be in breach of the new Immigration and Refugee Protection Regulations coming into effect this April. These new rules are a response to the rising concern that temporary foreign workers are being treated unfairly by some employers.
Employers of foreign workers will now have to show that the wages, working conditions, and occupations reflect the conditions offered in the worker’s employment contract. CIC will assess the “genuineness” of an employment offer (and the employer’s previous compliance) when the employer applies for a labour market opinion (LMO) and when the work permit is issued.
What is a “Genuine” Employment Offer?
Determining the “genuineness” of an employment offer will be based on three main factors:
• whether the offer is consistent with the needs and type of business of the employer
• the employer’s ability to fulfill its terms
• past compliance by employers or recruiters with federal or provincial laws pertaining to foreign workers.
Employers will have an opportunity to justify any wage, occupation, or discrepancy in working conditions experienced by their foreign workers. Employers found to be non-compliant will, however, face exclusion from the temporary foreign worker program for a minimum of two years and may be “blacklisted” on CIC’s website.
With some exceptions (such as work performed under international agreements), the new regulations will also put a four-year cap on the amount of time foreign nationals may work in Canada. The days of simply applying to extend an LMO are long gone.
A Recent Case of Possible Non-Compliance with Foreign Worker Regulations
Many readers may also be familiar with the recent class-action suit against the Denny’s restaurant chain in Canada. More than 50 Filipino temporary foreign workers employed by the restaurant chain launched the suit claiming that the company breached their employment contracts. They also alleged that the company’s actions were in contravention of the Employment Standards Act. If these allegations are found to be valid, Denny’s will become an example of a non-compliant employer under the new regulations. This case emphasizes the importance of employer compliance, particularly for large employers who may rely heavily on access to the temporary foreign worker program.
Employers intending to hire temporary foreign workers for upcoming projects should bear these new regulations in mind. Though CIC and Service Canada have been tight-lipped about how they will enforce the new regulations, employers should keep comprehensive records and documentation for their foreign workers.
For more information about the Immigration and Refugee Protection Regulations and immigration law in general, please contact Melanie Samuels. Carmen Hamilton, articled student, assisted with the research and writing of this article.
Read other articles from the Spring 2011 Letter of the Law
:
• Possession Is Not Nine Tenths of the Law by Michael Hewitt
• Non-Competition Clauses and an Employee’s Duty to Mitigation by Barb Cornish and Debra Rusnak
• Proposed Limitation Act Changes by Steven Lesiuk
• Simple Socializing May Have Complex Perils by Scott Brearley
• Insurance Brokers’ Liability by Derek Brindle Q.C.
• Editor’s Note by David Perry
• US@SU Celebrating A Quarter Century of Accomplishments