Feature issue for employers Changes to foreign worker regulations ecruiting and retaining qualified employees are perpetual business challenges. In light of massive demographic shifts, employers are now commonly seeking personnel beyond Canada’s borders. Historically, most temporary foreign workers were highly skilled; however, in recent years, labour market shortages have necessitated recruitment of foreign workers to fill lower skilled positions. The employment of less educated workers, who might be more vulnerable to unethical business practices, has led to increasing concern about abuses, both real and perceived, of the immigration system. In the midst of this sea change, the federal government has enacted regulatory changes which will significantly impact employers who hire foreign workers. In ordinary circumstances, foreign workers are permitted to enter Canada based (in part) on their employer’s representations on the work hours, compensation and benefits associated with the position. The new regulations will punish employers who fail to honour these representations. Employers must provide foreign workers with employment terms that are substantially the same as those represented in the immigration application. Compliance with this requirement will be assessed over the preceding two year period. Violators will be identified on an official published “blacklist”, and will be restricted for two years from even applying for a Labour Market Opinion (a necessary first step in hiring a foreign worker). Furthermore, foreign workers will be prohibited from entering into any employment agreement, or extending an existing agreement with an employer whose name appears on the list. Employers on the list will therefore be forced to use domestic sources to fill their human resource needs, however impractical or unrealistic this may be. It remains to be seen just how far enforcement will reach. For example, what degree of change in the employment relation-
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ship will qualify as a violation of these new regulations? Workers who enter the country on a work permit often see minor changes in salary, benefits or job classification. In those cases, it will be a question of degree as to whether an employer has substantially changed the terms of employment, or simply allowed the employment
Blair Pritchett, Partner, McInnes Cooper relationship to evolve in the normal course. It may take some time before the exact parameters of these restrictions are clear. Another critical regulatory change is the creation of a four year cap on the time that a foreign worker can be employed in Canada. Once this threshold is reached, an individual must leave Canada for four years before seeking re-entry as a temporary foreign worker. This poses obvious retention problems for workers who have a good track record with their
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employer. Furthermore, it may complicate legitimate efforts to transition a valued employee from a temporary foreign worker to permanent resident status. The pending regulations will profoundly impact Canadian businesses. Employers must be cognizant of the four year limit faced by foreign workers. Furthermore, the new regulations will prohibit some employers from even recruiting foreign workers if violations are unearthed. In this new regulatory environment, full compliance has become a business necessity. Blair Pritchett is a Partner in McInnes Cooper’s St. John’s office, practicing in the areas of insurance, litigation and immigration. He routinely represents individuals and corporations with Canadian Immigration issues. These matters involve temporary work permits, study permits, permanent residency, citizenship, and US/Canada cross border movement. Blair is a member of the Canadian Bar Association, the Law Society of Newfoundland and Labrador, the Canadian Defence Lawyers and the American Association of Immigration Lawyers. He is the founder and Chair of the CBA-NL Citizenship & Immigration Section, and a former Chair of the CBA-NS Civil Litigation Section.
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