Included in Beyond the Border – July 2022

By Brendan Sheridan; Halifax

Canadian employers are increasingly relying on foreign workers to fill gaps in the labour market and to provide specialized skills. In 2020, there were a total of 84,609 work permit holders under the Temporary Foreign Worker Program and an additional 242,130 work permit holds under the International Mobility Program.[1] While this was a slight decrease over prior years, this decrease can be attributed to COVID-19 and the related travel restrictions and business closures. Prior to 2020, the number of foreign workers had been steadily increasing.

As there are a significant number of employers relying on foreign workers in Canada, it is important to understand your obligations as an employer and what practices you should undertake. Employing foreign workers carries additional obligations compared to employing Canadians or permanent residents. Below are some tips on best practices to help employers meet their obligations when employing foreign workers. We note that this is not a complete list and there may be other actions you can also undertake that help ensure that you remain compliant.

1. Know your Obligations when Employing Foreign Workers

As noted, employers have additional immigration-specific compliance requirements when employing foreign nationals in Canada. Prior to recruiting and hiring foreign nationals, it is important to understand each obligation that you are agreeing to undertake as an employer. While several of these requirements are common sense and applicable to all workers, there are specific requirements that are only applicable to foreign workers.

Employers who recruit and hire foreign workers must be aware of and comply with the following obligations:

• The employer must remain actively engaged in the business in which the job offer to the foreign worker was made.
• The employer must comply with the federal and provincial laws that regulate employment and the recruiting of employees.
• The employer must provide the foreign worker with employment in the same occupation as that set out in the offer of employment and with wages and working conditions that are substantially the same as, but not less favourable than, those in the same offer.
• The employer must make reasonable efforts to provide temporary foreign workers with a workplace that is free of abuse.
• The employer must be able to demonstrate that any information they provided in relation to an offer of employment was accurate.
• The employer must retain any document that relates to compliance with the imposed conditions for a period of at least 6 years.

While many of these obligations are common sense, as outlined above it is important to note that workers on employer-specific work permits do not have the same flexibility as Canadian or Permanent Resident workers. Specifically, foreign workers on closed work permits cannot, in most circumstances, change their employment location, wage, position or company without seeking a new work permit. As such, it is important to seek legal advice prior to making any changes to a foreign worker’s employment with the company.

Also, the Government of Canada has also implemented employer compliance obligations for foreign workers in response to the COVID-19 pandemic. These additional compliance obligations include:

• The employer must not do anything that prevents a foreign national from complying with orders, regulations or laws related to COVID-19.
• The employer must provide a foreign national with wages that are substantially the same as those set out in the offer of employment during an isolation period required on entry to Canada.

2. Keep a Tracking Chart of Foreign Workers Employed with the Company in Canada

When employing foreign nationals, it can be useful to keep a tracking chart of all foreign worker employees which confirms their authorization to work in Canada. This chart can be relatively brief, but should confirm that the employee does have authorization to work for the company in the position they are currently filling. As an example, the tracking chart can include the following information:

• The foreign worker’s name;
• The foreign worker’s position listed on their work permit;
• The type of work permit the foreign worker currently holds (ex: Post-Graduation work permit, spousal open work permit, employer-specific work permit);
• The foreign worker’s work permit’s issue and expiry dates; and
• The evidence that the company received that the worker has authorization to work in Canada (ex: copy of currently valid work permit).

While it is not essential that employers have tracking charts for their foreign national employees, it does provide a convenient means to confirm that the foreign worker does have authorization to continue to work for the company. It also allows the company to ensure that they are aware when the worker will no longer be able to continue working for the company or when the foreign national must apply to extend their work permit.

3. Keep a Detailed Employment File for Each Foreign Worker for Six Years

IRCC and Service Canada have the authority to conduct Employer Compliance Reviews and Inspections on employers employing foreign workers. These inspections can simply be as a result of random selections; due to previous non-compliance with obligations; or because they suspect an employer is non-compliant. These compliance reviews or inspections will review whether the company was compliant with their obligations when employing the foreign worker including, but not limited to, whether the worker was provided the wages and benefits specified in their offer of employment; the position the worker was working in and the duties completed; and the hours worked by the foreign worker.

As it is possible to be selected for a compliance inspection for any number of reasons, it is important that employers are prepared to demonstrate that the company has been compliant with all obligations. As such, it is advisable to keep a detailed employment file for each foreign worker to prove that the company was compliant with the obligations. These files can include copies of contracts, work permits held during the employment period, Labour Market Impact Assessment Applications and approvals or Employer Compliance Submissions, pay stubs, and time sheets, among other documents.

These compliance reviews or inspections can be conducted up to six years after an individual was issued a work permit, and therefore records should be kept at least for this period of time.

4. Prepare a Corporate Immigration Policy

Employers may want to prepare a clearly defined policy on what assistance the company will be providing to employees especially when employing more than one foreign national. This would allow the company to present and communicate a consistent message to all foreign workers.

This policy can outline such things as the employee’s responsibilities relating to their status; timeline and support that the company will provide for work permit renewals; the eligibility and process to request that employer support for permanent residence applications; the support the employer is willing to provide for permanent residence applications; and any settlement support the employer will be providing to the worker.

A copy of this immigration policy can be provided along with the contract or offer of employment so that the employee understands at the outset what their obligations will be and the company’s responsibilities related to employing the foreign worker. It also helps set expectations and provides a consistent message so the workers will understand the level of support the company will provide for future applications or for settling in Canada.

5. Plan Ahead and Set Reasonable Expectations for the Start of Employment

When it comes to hiring or extending a foreign worker’s employment, it is essential that you plan ahead. The immigration process can be complex, and quite lengthy. It can take several months before a foreign worker is given authorization to work in Canada once the required steps are completed and applications are submitted. If the company is expecting to hire a foreign worker or extend a foreign worker’s employment then it is essential that they begin looking into the steps as soon as possible thereafter to fully understand the obligations required and timeline of getting the foreign worker into and/or authorized to work in Canada.

Planning ahead also allows the company to set reasonable expectations within the organization and with the foreign national themselves. In most cases, it is unlikely that a worker will be able to join the company immediately like a Canadian or Permanent Resident. As such, understanding the timeline when the worker can start is helpful for planning purposes and setting expectations.

Conclusion

As Canadian companies are turning more and more to foreign workers to help fill labour gaps and provide specialized skills, it is essential that companies begin taking steps to understand the added obligations of employing foreign workers and prepare for the same.

The above article contains some tips to help prepare for hiring foreign workers and remain compliant with obligations, but the steps employers should take should not solely be limited to those discussed above. You can read more about Employer immigration compliance obligations and Five compliance tips (for employers of foreign workers) in our previous Thought Leadership articles. The immigration process can be complex, and time consuming so understanding the process or seeking support at the beginning is recommended.

If you are interested in exploring the possibility of hiring a foreign worker, implementing the above tips, or discussing other employer obligations when hiring and employing foreign workers then please contact a member of our immigration team and we would be happy to assist.

This update is intended for general information only. If you have further questions about these programs or are an employer seeking to support your workers, please contact a member of our Immigration Group.

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[1]https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/annual-report-parliament-immigration-2021.html