Canadian Lawyer InHouse

11 canadianlawyermag.com/inhouse december 2014 By Hendrik Nieuwland and Brandin O'Connor Workplace Solutions Navigating new temporary foreign worker laws Employers who violate rules could be hit with fines. O n June 20, 2014, the federal government announced major changes to the Tem- porary Foreign Worker Program. Many of the changes took effect immediately, although certain changes have deferred implementation schedules. The changes were made to address complaints that the TFWP was too lenient and allowed foreign employees to be hired into posi- tions that should have been filled by Canadians. It is im- portant that employers interested in hiring temporary foreign workers understand the changes, as the new TFWP makes it both more difficult and more costly for employers to hire TFWs. The TFWP has been reorganized into two primary categories: the TFWP and the International Mobility Programs. The IMP governs positions for which em- ployers are not required to obtain approval through the Labour Market Impact Assessment. Examples of em- ployees governed by the IMP are certain skilled profes- sionals from NAFTA countries, skilled intra-company transferees, and young people coming to Canada as part of the International Experience Canada program. The remainder of this article will focus on the TFWP. The LMIA replaced the Labour Market Opinion. The LMIA and LMO serve the same purpose — as tests to ensure employers have a need for TFWs — but the LMIA is much stricter. As part of the LMIA, employers must now state how many Canadians (or permanent residents) applied and were interviewed for a position, and the reason that those applicants were not hired. Employers must also attest to their knowledge of the rule that Canadians cannot be laid off or have their hours reduced at worksites that employ TFWs. The fee for an LMIA has been increased from $275 to $1,000; this fee must be paid for each position an em- ployer wishes to fill with a TFW. Work permits granted following successful LMIAs have also been halved from a two-year standard duration to only one year. The TFWP now has different rules for "low-wage" and "high-wage" positions. A low-wage position earns less than the median hourly wage (which is $21 per hour in Ontario), and a high-wage position earns more. Employers with at least 10 employees nationwide who hire TFWs for low-wage positions are subject to a maximum number of low-wage TFWs per worksite. Each worksite must currently have no more than 30 per cent of its workforce made up of low-wage TFWs. On July 1, 2015, the TFW cap will be reduced to 20 per cent of the workforce, and as of July 1, 2016 the fi- nal cap will be set at 10 per cent of the workforce. The cap is determined based on the total hours worked at a worksite, rather than the number of employees. So employers should carefully track the hours worked by low-wage TFWs to ensure their hours don't exceed the maximum proportion of hours worked by all employees at the worksite. Employers applying for high-wage TFWs must com- plete and abide by a transition plan. Employers have two transition plan options. First, they may conduct four distinct activities to recruit or train Canadians (or permanent residents) in the occupation for which a TFW is sought. Alternatively, they may assist the TFW in becoming a permanent resident of Canada, such as, by offering him or her a permanent position or provid- ing language lessons. Employers will be subject to pen- alties if they do not follow through on their proposed transition plans. There are a number of exemptions from certain as- pects of the new TFWP. Positions and industries with exemptions include truly temporary positions, agricul- tural positions, live-in caregiver positions, and particu- lar high-wage or high-skill positions. The government is currently refusing to allow TFWs to be hired for cer- tain positions in the accommodation and food service and retail trade industries in economic regions with unemployment rates higher than 6 per cent. Finally, the government is "massively increasing" the number of inspections it conducts of employers who employ TFWs, and will impose fines of up to $100,000 for failures to comply with the TFWP rules. The new changes have made it dramatically more expensive, time consuming, and confusing for employ- ers to utilize TFWs. Employers who have historically employed TFWs might reconsider doing so in the fu- ture unless they are unable to function without them. Those who continue to use the TFWP should closely read the Employment and Social Development Canada and Citizenship and Immigration Canada web sites to understand the program, and should ensure they are in compliance with the program going forward in order to avoid hefty fines. IH Hendrik Nieuwland and Brandin O'Connor practise employment law with the firm Shields O'Donnell MacKillop LLP of Toronto.

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