10 Essentials for employers with Foreign Workers
Do you need help with your immigration application or want to consult with a Canadian immigration lawyer about your file?
If you are a Canadian employer, there are legal requirements to whether, when and how you can hire and employ anyone who is a Temporary Foreign Worker (TFW). A TFW is anyone who is not a Canadian Permanent Resident (PR) or a Canadian Citizen.
As Canadian immigration lawyers, we offer corporate business immigration audits to spot the deficiencies in your process before you have to face a compliance audit from Service Canada or other immigration authorities.
Keep in mind that we are providing point in time legal information and not legal advice. We welcome you to book a consult so we can properly assist you in understanding your corporate obligations. The following are some key points to consider when you assess your level of compliance with Federal and Provincial Immigration and employment laws:
1. Register your corporation early if you operate in British Columbia, Manitoba or Saskatchewan. Determine whether your company needs to be Provincially registered to hire TFWs (if hiring under TFWP, SAWP, LMIA, home care streams)
a. B.C., Manitoba and Saskatchewan all require employers to have a valid certificate of registration and the process can take months so apply well in advance;
b. The Province can review or refuse your application if the company has a history of failure to comply with Employment Standards legislation, has been untruthful or depending on conduct.
2. Recruiting? Using someone who might fall under Employment Agency laws? Employers must work with a bonded (~$25k security), licenced recruiter and employers should search their Provincial database to ensure the recruiter with whom they are working is licensed.
a. Unlicensed recruiters can be fined up to $10,000 in some Provinces or forfeit their bond;
b. Employers who work with an unlicensed recruiter could have their Provincial Registration Certificate for hiring TFWs revoked or found to be in non-compliance;
c. Written agreements are usually required to show TFWs are never charged any money and employers must keep records for at least 3-6 years;
d. Screen candidates early for inadmissibility so you do not waste money recruiting a TFW whose work permit will never be approved.
3. Know whether you need to hire under IMP (LMIA exempt) or TFWP (LMIA required). See our earlier business immigration podcasts, episodes 100 and following and listen to the Canadian Immigration Institute Podcast episode 134 where Mark Holthe and I discuss the key points covered in this article. Be correct about whether the employee requires a work permit, whether their WP needs to specifically list you as the employer, or whether the TFW has an open work permit or status to work. It is illegal and a criminal offence to employ a TFW without proper work authorization and employers are deemed to know better.
4. Plan your timing, process, and retention. It can take days under the International Mobility Program (IMP) or many months under the Temporary Foreign Worker Program (TFWP) to begin the process to apply for an employer specific work permit or to try to renew an existing permit. Determine whether your TFWs are visa required. Consider your long term goals for the employee and whether your company will support their application to become a Canadian PR?
5. Do you have the proper employment clauses? Most immigration programs require some sort of employment agreement signed by the employer and the employee. Book a consult to discuss the timing and wording of your employment agreements with TFWs. In general, IRCC wants to see employment agreements signed prior to Employer Portal submission or after ads and the full recruitment period but before you submit the LMIA if you are pursuing an LMIA; however specific legal advice is required in these situations. Think about:
a. Making contingent or conditional offers of employment depending on LMIA approval and whether the TFW obtains and maintains valid work status and temporary resident status;
b. Did you include the required notice? Under the TFWP, employers should provide Know Your Rights. Under the IMP, employers should provide Your Rights Are Protected. Have you kept written records of when you provided the information to FWs? Did you post the notice in work spaces and did you provide it electronically?
c. Have you offered term or indeterminate employment? There are risks if you structure your agreement incorrectly. If there is a probation period in your employment contract, do you actually do probation period evaluations and keep records of issues? Do you have proper termination notice provisions?
d. Are you complying with Employment Standards provisions for hours of work, overtime pay, payroll? You can be audited in an inspection or compliance review.
e. Check with your Immigration lawyer to ensure you only provide the employment agreement at the appropriate time and that it is in line with the NOC, job title and job duties and hours and pay in your IMP Employer Portal or LMIA.
6. Ensure your Workers Compensation Coverage is active and paid and there are no claims against you. It is often helpful to have a clearance letter when applying for an LMIA.
7. Substantially the same provisions: Ensure proper Payroll, remittances, CRA compliance and records so that employees are properly getting their paystubs and T4s. Understand that you still need to pay TFWs even if they don’t have their first SIN yet or sometimes if their SIN expires but they can prove they have maintained status. Diarize employees’ SIN expiry dates for with SINs that begin with 9 to keep proper records.
8. Have a corporate culture and policy and training for existing employees that actually ensures the workplace is free from physical, emotional, psychological abuse or reprisal.
a. Can never keep a TFW’s passport or WP or threaten to deport them;
b. Cannot charge or recoup recruitment fees or LMIA fees from employees.
9. Ensure that any workers injured or ill at the workplace can always access health care services. Also:
a. If under low wage LMIA, employers also need to provide health care coverage and transportation to and from the workplace;
b. If under high wage LMIA, employers need to cover the gap until the TFW is covered under Provincial Health Care.
10. Get help from experienced Immigration lawyers to ensure you are up to date with changes in immigration law and policy and employer requirements. Law and policy changes often. Plan ahead to create a business immigration law strategy to avoid public backlash, to meet your anticipated labour demands, comply with a multitude of Provincial and Federal laws, and to have happy, productive employees.