Canada’s Temporary Foreign Worker Program: Controversy Instigates Rapid Reform

In April of this year, Canada’s Temporary Foreign Worker Program suddenly became a hot topic for every major media outlet in the country. Reactions to controversy surrounding the program ranged from virulent criticism to impassioned defense.

The debate eventually expanded to include questions about the economic necessity of outsourcing, the obligations of Canadian companies, and national identity in a globalized world. These are all fundamental issues reaching far beyond discussion of the merits of Canada’s Temporary Foreign Worker Program. Even a major overhaul of the program would be only the tip of a very large iceberg.

Nonetheless, such an overhaul was the simplest way for the federal government to address the criticism, so that has been the immediate result. The Temporary Foreign Worker Program was slated for change before the recent controversy erupted, but new policies and heightened enforcement measures have come down swiftly over the past few months. These recent changes are a marked departure from the previous year’s efforts to make it simpler for compliant employers to bring in temporary foreign workers.

On 29 April 2013, two major changes were implemented, effective immediately:

  • The wage flexibility that previously allowed employers to offer wages that were up to 15% lower than the prevailing Canadian wage rate was removed; and
  • the Accelerated Labour Market Opinion process was suspended. This pilot program had previously allowed certain employers of higher-skilled workers to obtain an LMO more quickly and easily.

Other changes were announced, but have yet to be implemented due to the need for parliamentary approval:

  • The Government’s authority to suspend and revoke work permits and labour market opinions (LMOs) if the program is being misused will be expanded;
  • employer fees for processing Labour Market Opinions will be introduced, and the fees for processing work permit applications will be increased; and
  • the ability to list knowledge of a language other than English or French as a job requirement will be limited.

On 8 June 2013, another set of proposed regulations was introduced, including the following:

  • The employer compliance verification period will be extended from two (2) years to a period of up to six (6) years;
  • employers offering stripping, exotic dance, escort services or erotic massages will be prohibited from participating in the program; and
  • most controversially, the proposed regulations expand the authority of federal officials to search Canadian workplaces and question employees without a warrant. Employer inspections will take place where fraud is suspected, but can also result from a random audit.

The ability to bring in temporary foreign workers to fill labour needs is vital to the success of many Canadian businesses. The government has acknowledged and encouraged this in the past, and will certainly continue to do so going forward. However, employers must be prepared for stricter monitoring and enforcement of the program. We can expect that new applications will be more closely scrutinized, and that violations of the program requirements will not go unpunished.

Preparing thorough applications and paying close attention to compliance conditions will now be more important than ever. The Immigration Law Group at Perley-Robertson, Hill & McDougall LLP/s.r.l. has the expertise to assist both employers and potential employees with evaluating eligibility, preparing comprehensive application packages, addressing any potential complications, and advising on ongoing compliance requirements.

Warren L. Creates and Jacqueline J. Bonisteel

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