Legal news and trends for Canadian in-house counsel and c-suite executives
Issue link: https://digital.canadianlawyermag.com/i/50873
ABUSE OF LOW-SKILLED WORKERS M uch of the abuse of tem- porary foreign workers in the news relates to low- skilled workers, such as those who work as nannies, in meat-packing plants, and in retail and hospitality. "We had such a horrible prob- lem with fake offers — 50 per cent plus [of in-home caregivers] were coming in to fake offers and being released on arrival, having paid agencies ridiculous fees, anywhere between $2,500 to $10,000," says Marna Martin, chairwoman of the immigration and labour issues committee with the Canadian Coalition for In-Home Care. "They had to do something." The downside is that not as many caregivers are going to get into Canada, but the good news is they'll be coming to legitimate jobs. "Certainly a good percentage knew they were coming to fake jobs, but they didn't care — they were will- ing to pay all this money to get into the country because they could then get permanent resident status, so it's not good for them because you can't pay your way in as eas- ily," says Martin. However, it's good for legitimate caretakers, she says, and it's also good for Canadians. As far as Martin is concerned, she can't wait for the two-year penalty to begin. Right now, it's difficult to hold employers account- able if they don't follow through on the original agreement. "If a care- giver submitted an application to the Ministry of Labour to complain about something, it takes so long to get that heard and settled — by then the family has already got somebody else." — VH Already, there's a four-and-a-half-month lead time to obtain a labour market opinion and work permit. "My concern is that will mean an added compliance burden and additional delays, which on a practical level is going to be a prob- lem for employers. When an employer decides they need foreign talent, they usually need it now, not four-and-a-half months from now." Another issue is unintentional non- compliance leading to a denial of an application and a denial of service. If a company brings in a CEO at $175,000 a year, but the CEO gets a bonus, the com- pany is technically in non-compliance. Or if a temporary foreign worker is hired as a computer programmer and after two years is promoted into a super- visory position but the labour market opinion hasn't changed, the company may be found to be in violation. Nees has a client in the midst of a seven-year project with a temporary foreign worker who doesn't want to become a permanent resident — he just plans to stay here for the duration of the project. "They're in a bit of pickle, so we're looking at solutions for them and hoping that might be one of the exemp- tions they'll come up with," she says. The nature of business now is that people move around, and Canada has to acknowledge that while still tighten- ing the system, says Nees. "Four years isn't a really long time — that seems a bit unreasonable to me, but at the same time, they're saying if it's temporary, it's temporary, so where do you draw the line?" she says. "The system needed a shakeup, it's just going to need to have the kinks worked out." How to prepare So what should corporate counsel do? Make sure everything you're doing is above board and accurate, says Nees. So if you say you're going to pay a tempo- rary foreign worker $87,000 a year, you pay him $87,000 a year — you don't pay him $82,000 or change his job unless you can justify why. Rowntree recommends assessing compliance, implementing controls, and undergoing succession planning. If there's been a change in wages, working conditions or other terms, it could be problematic for that application — and any future applications in the next two years. Corporate counsel should audit present compliance and look for any discrepancies. They should know, for example, how many foreign workers are in the com- pany, what type of work permits they have, and if there are any discrepancies between their current job and what was originally promised to them. If there are discrepancies, they should go back to the government and make efforts to amend those discrepancies, says Diner. If there's been a significant increase in job responsibilities or a change in job description, title or salary, tell the gov- ernment, and if necessary, request a new work permit. In terms of unintentional accounting or administrative errors or good-faith errors, the employer will be expected to rectify the situation or take reasonable steps to do so. So if a temporary foreign worker has been underpaid, the employ- er has the chance to rectify the situation by compensating that worker. Rowntree also recommends imple- menting appropriate controls for future compliance, which means putting one person in charge of the hiring and main- tenance of foreign workers (with larger companies that's typically within the HR department, and for smaller companies that's typically someone in a manage- rial or executive capacity). There's also a need for succession planning to deal with the four-year cap. "We work with companies all the time that say they don't have any idea how many foreign workers they have — maybe the project manager or HR deals with it, so there's no centralized system," says Nees. "Because it can have com- pany-wide repercussions, you've got to know who's in your company." And she deals with some companies that bring in 300 to 500 foreign workers a year. "Nobody wants to be the HR person who screwed up or corporate counsel who did the wrong application and now they're barred for two years, and they have a big project coming up so there's a lot of concern and uncertainty," says Nees. "It is a legitimate concern." IH INHOUSE APRIL 2011 • 33