Managing Foreign Workers: a New Approach for Human Resources Professionals

The aging population, the increasing numbers of retirements, the talent shortage and the challenge of attracting and retaining employees have contributed to a shift in the labour market.

Using temporary foreign workers to fill positions at all levels, including managers, professionals, high-level specialists and employees in the manufacturing sector, is increasingly considered a necessary solution. As a result, mastering the legal concepts and rules specific to managing these workers is becoming an essential skill for companies.

The use of temporary foreign workers requires a different approach. Companies need to understand not only the legal aspects of workers’ immigration status but also the specifics of the applicable employment law before, during and after the foreign workers’ employment.

Important Considerations Before Hiring

In general, any work performed in Canada by a foreign worker requires a work permit, regardless of the length of the contract and the source of remuneration. The immigration process varies substantially depending on factors including the type of work, the salary offered, the experience and education of the applicant and the applicant’s citizenship. The time required to prepare and process such applications can vary significantly from a few days to several months. An agile immigration strategy must consider these factors, and expectations must be managed appropriately. The drafting of job offers should include specific protective clauses in case of refusal of work permit applications, withdrawal of the applicant, changes in the circumstances for the employer and other related risks.

Understanding the issues involved in a work permit application is also important. In some situations, the employer must demonstrate that, despite significant efforts, no qualified and available Canadian or permanent resident candidate could be identified for the position. The rules regarding job postings differ greatly from traditional practices, and it is crucial to identify the issues at this level. It is also important to ensure that the salary offered to the foreign worker corresponds to the median wage as defined by Emploi Québec or Service Canada, regardless of the internal salary scale, except in the case of unionized positions. Wage inequity could be raised in certain situations.

Among the obligations of employers who use foreign workers are certain financial obligations that vary according to the situation and may include transportation costs, costs related to obtaining temporary health insurance, and assistance in accessing affordable housing. Recent provisions have added the obligation to provide the temporary foreign worker with a written employment contract prior to arrival in Canada. Using a standard contract that does not consider the specific realities of hiring a foreign worker is a common mistake. In addition to the comments above regarding the conditional nature of offers, employers may provide reimbursement clauses for certain expenses incurred for the arrival of workers in the event of withdrawal or early departure. However, the Act and its regulations provide for several exclusions and prohibit the employer from doing so for some or all of the costs incurred in each case. Sound advice is required in each particular case. These costs should be considered in the context of international recruitment.

Important Considerations During Employment

While some “open” work permits allow for a great deal of latitude, most work permits are “closed”, which creates several compliance obligations for the employers involved. For the duration of the work permit or employment, the employer must provide the temporary foreign worker with employment in the same occupation as that specified in the application, pay wages that are substantially the same and no less favourable, provide working conditions that are also substantially the same and no less favourable, put in place the necessary measures to provide a work environment free of abuse of any kind and comply with any other undertakings given. Any change of position, including a promotion, any change in working conditions such as a change of business unit within a group, or any other change in the conditions of employment, requires a thorough analysis to determine whether a new work permit is required. If so, this must be obtained before the change takes effect. Human resources specialists should put monitoring and management systems in place to ensure such changes are made with proper authorization. The restrictive nature of work permits may also raise several issues of fairness or equal opportunity. It is crucial to consider both employment law and immigration law aspects, and the pairing is sometimes challenging.

Important Considerations at the End of Employment

Contrary to popular belief, a temporary foreign worker is not required to remain with the employer who facilitated their arrival in Canada. Although closed work permits do not allow work for another employer, starting a new process and obtaining a work permit at any time is possible. Similarly, an employer can terminate employment for the same reasons and under the same protection regimes applicable to permanent residents and Canadian citizens. However, in some cases, the employer must pay the cost of transportation back to the home country. Again, this is an analysis to be made for each individual situation. Employers using the system must also keep records of foreign workers for a period of six (6) years in case of audit or inspection. The consequences of a breach of the rules, even if the employment of the worker under investigation is terminated, may include financial penalties, revocation of other work permits issued to the employer, and even the inability of the employer to use specific work permit programs.

Conclusion

Using temporary foreign workers can be an important benefit to a company. However, it is necessary to understand the issues fully and to work with experts who master the legal concepts and the applicable immigration and employment law rules. Companies must change their approach to adopt appropriate practices and effectively equip themselves with the tools to manage this new reality.

If you have any questions, do not hesitate to contact our Partner, Lawyer and head of the Business Immigration Group Julie Lessard, who will be pleased to assist you.