New Challenges for Employers under the Temporary Foreign Worker
Since we last posted about the Temporary Foreign Worker Program
here, the federal government has, in the face of political
pressure, introduced significant changes to the program. Employers
now face greater challenges and cost in addressing labour shortages
through the use of temporary foreign workers
First, employers are now subject to a cap on the proportion of
their workforce which can be filled by low wage TFWs. A "low
wage" job is any job which pays below the provincial or
territorial median wage. Employers with ten or more employees
can employ only 10% of their workforce as low wage
TFWs. Those employers which currently employ more than 10% of
their workforce as low wage TFWs are capped at 30% or their current
level (whichever is lower); this cap will be reduced to 20%
beginning July 1, 2015, and further reduced to 10% on
July 1, 2016.
Second, employers face a more rigorous Labour Market Impact
Assessment ("LMIA") process to hire TFWs, in place of the
former Labour Market Opinion ("LMO")
process. Employers must now provide more information about the
number of Canadians that applied for the required position, the
number of Canadians interviewed, and explain why those Canadians
were not selected for the position.
Third, certain applications to hire TFWs will not be processed
at all. Employers will not have their applications processed if
they are 1) in an economic region with an unemployment rate of 6%
or more; and 2) either operating in the
Accommodation and Food Service or Retail Trade industries
or applying to hire a TFW in the following
Food Counter Attendant, Kitchen Helpers and related occupations
Light Duty Cleaners (NOC 6661);
Cashiers (NOC 6611);
Grocery Clerks and Store Shelf Stockers (NOC 6622);
Construction Trades Helpers and Labourers (NOC 7611;
Landscaping and Grounds Maintenance Labourers
Other Attendants in Accommodation and Travel
Janitors, Caretakers and Building Superintendents
Specialized Cleaners (NOC 6662); and
Security Guards and related occupations (NOC 6651).
All pending applications under these categories have or will be
cancelled, and the application fees refunded.
Fourth, employers seeking to hire a TFW for a job which pays
more than the provincial or territorial median wage (a "high
wage" job) must, with few exceptions, submit a Transition Plan
to show their efforts to hire Canadians or permanent residents for
the job. These efforts may include paying higher wages for the
position, investing in training Canadians and permanent residents,
more active recruitment efforts (including engaging organizations
to identify and hire underrepresented groups such as aboriginals
and youth), or supporting the TFW's permanent residency.
Finally, all employers face tougher enforcement, and higher fees
and fines under the TFWP. The LMIA application fee has
increased from $275 to $1,000 per worker. ESDC has also
promised that one in four employers using the TFWP will be
inspected each year for compliance with the conditions of their
LMIA letters and, if applicable, the Transition Plans. ESDC may now
impose a fine of up to $100,000 for violations.
There is one bright spot to the changes to the TFWP. For
employers who need TFWs in skilled trades, highly paid jobs (top
10% wages) or for very short projects (120 days or less), ESDC is
aiming to process LMIAs within ten business days.
As a result of these changes, it will undoubtedly be more
difficult for employers to use TFWs to meet labour shortages.
Employers can minimize their risk of fines and challenges under the
TFWP by taking the following steps:
Make your best case for a TFW, including applying for shorter
or limited duration projects (if possible) and keeping good records
of your efforts to recruit and hire Canadians for the
Take advantage of arranged permanent employment programs for
foreign nationals you wish to employ on a longer term basis, such
as Provincial Nominee Programs;
Keep all documents necessary to show compliance with any LMIA
and, if applicable, Transition Plan, including time sheets, pay and
benefit stubs, and ongoing recruitment, training and other efforts
to identify and hire Canadians;
Contact legal counsel if you are notified about an inspection
by ESDC or need to make any changes to a TFW's employment.
We will keep you posted on any further changes to the TFWP.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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