Welcome back to another podcast episode. This is 134. And today we are going to talk about the top 10 Essentials for employers with foreign workers. How are you doing, Alicia?
I'm doing well, Mark. And I really wanted to talk about this today. Because I find that sometimes we're so specific with, you know, really what people have to do on a very particular topic with immigration law, that it's nice to have an overview for employers and just say, alright, if you happen to employ foreign workers, here are some really, really important things you need to know.
That makes sense. And obviously, much of what we do on this podcast is built off of our real life experiences. And so yeah, we really hope that this is going to be beneficial for employers who are maybe dipping their toe for the first time into the world of foreign workers. And this will be a great place for them to start. So let's hit it off right with number one.
And so one of the first things sequentially timewise that employers should know is that if employers are operating businesses in some provinces, they have to go through a provincial registration process in order to be able to employ foreign workers at all. And so if you happen to have a business that's located in or a branch office in British Columbia, or Manitoba, or Saskatchewan, then your company needs to be provincially registered in order to employ foreign workers. And this is a provincial licensing requirement. And so this registration process can take a number of months to complete. It's not super onerous, you have to have your incorporation business number and things like that, and your your CRA numbers. But it takes time for the province to go through that process. And you're not able to do certain things under certain programs if you don't have this registration.
And so, on this topic, Alicia, why did the provinces feel they need to do this, with everything else that's in place with the monitoring that occurs within the Immigration Department with the audits and the employer compliance things that they do? Why have provinces felt the need to make employers register in this fashion?
So it gives, it gives more insight to the province about who is using which programs and it also gives a another stick. So we'll talk about that in a second. But if employers are failing to comply with certain things, then they can lose their registration provincially. And so it's another mechanism for oversight for the province and it also gives more information so that employer compliance reviews, companies can make sure that they're doing things properly and when they have a good track record. That's something they can build up if they have a history of non compliance. It's another yet another reason why you could lose your federal record striction I want to emphasize though that not everybody has to have this temporary foreign worker provincial registration. So it's technically only if you're hiring under the temporary foreign worker program, or the seasonal agricultural program, or you need an LMIA, or you're doing the homecare stream. However, it's good practice to have these in place, because you never know when you might need to use one of these programs. And it behooves you to make sure that you have it so that if for some reason, you have an employee under the imp, and now they're running out of time, and you need to transition them over to the other stream, you have this as an option. It
makes a lot of sense to be proactive, especially given the lengthy processing times. All right, number two on our list.
So number two is right from the get go. So let's assume you've set things up properly, you've got your incorporation, you've got your registration certificate, now you decide, hey, I'm going to start recruiting because we have a vacancy, it's been a chronic vacancy with our organization. And we really need to find a high caliber candidate for this position. Well, be really careful about who you are using as a recruiter. So if you're doing everything internally, if if your employees are doing all of the legwork and trying to find individuals you might be okay. However, if you are using any sort of external agency that could fall under employment agency laws, then know that employers must work with a bonded licensed recruiter, and in most provinces, recruiters or anybody who falls under the employment agency laws. provincially usually has to post a large bond, and it's about $25,000 For most provinces. And they have to employers have an obligation to search provincial databases, to ensure that the recruiter they're actually working with is properly licensed.
When you look at these, each of these points, there's one glaring reality. Unfortunately, not all actors within this industry are scrupulous. And so, you know, I look back at the early days when I first had my exposure to the labor market, opinion world and the recruitment of foreign workers, and it can become quite a scuzzy industry. And the whole purpose behind a lot of this when employers are frustrated and thinking, Why do I have to do this all of this work? It's because not all employers, and the individuals that they used to recruit, have the best interests at heart of the foreign nationals, the foreign workers that are coming in. And there's years and years of stories of exploitation and whatnot. And the problem is that when things don't go, well, most foreign workers are not willing to come forward and say, Hey, things aren't going well, whether they're taking being taken advantage of or whatnot. And most people, at least for nationals, when they're coming into to work on work permits in Canada, they're willing to put up with quite a bit, just for the hope of being able to stay. And unfortunately, these unscrupulous actors sometimes take advantage of that. They know that. And so the government is trying, you know, using whichever tools that they can at their disposal, to try to protect workers. And so they know that if the worker won't come forward, they have to do a better job of screening on the front end. And so that's to a large extent, why these things are in place. And when you think of things, from an economic standpoint, if you have an employer that is maybe not paying their workers, overtime, they're getting a competitive advantage because of that an economic advantage over other businesses. And if these processes that are put in place, can help to screen out or identify, you know, actors that are maybe not following the law, and helps to level the playing field. So it's important for employers to realize that, yes, this isn't fun in the process of going through it. But if I know that other employers have to do this, as well, hopefully the cream is gonna rise to the top.
And, I wanted to and you're absolutely right, Mark, and I wanted to add to that, it's if you're sitting there thinking, Oh, my company wouldn't do that. I wouldn't work with anybody who's unbonded or unlicensed. Be careful because sometimes you're working with some fancy executive recruiting agency, and you just assume they're licensed or bonded or the person that you happen to be working with on your profile for this executive or this, you know, senior level manager is bonded or recruited. But it's not an agency wide thing. It's an individual thing. And so, employers have a heightened obligation to go and actually check to make sure that even though you've hired some large fancy agency, the person that's actually working for you for this project is also bonded and licensed in your province of operation. So on licensed recruiters can be fined $10,000 in some provinces or forfeit their bond, if they are not up to date with their license. And employers who work with an unlicensed recruiter could lose their provincial registration certificate. So this is where I said, you know, this is one of the things that triggers that could make you lose it. And so when you go to register your corporation, it's actually possible for the province to push back and say, Hey, I've seen a history of a failure to comply with employment standards legislation, or you've been untruthful, or I saw that maybe somebody reported you are working with an unlicensed recruiter or you've had conduct that was, you know, questionable in the past. And so make sure that you're not taking these things for granted. And you're actually doing some due diligence here. And the other thing I'd say with recruitment is that a lot of employers don't know that the rules changed last September, and there is a requirement to have a written agreement, and this goes across the board for either imp employer specific work permits, or for LMIA A's, that employers have to have written agreements with their employees. And, you know, IRCC doesn't necessarily say it's a full employment contract, but it does say something in writing that sets out the key terms. And companies should be keeping that documentation for at least three to six years.
And one key component within the notification within the contracts, is that the foreign nationals are never charged any money. Throughout this process, at least in terms of the recruiting in the immigration side. Now, there's recruiters that use creative strategies to still, you know, extract money out whether it's helping to prepare a resume or pre employment training or what it might, you know, whatnot. But this is really what what goes to the heart of things. And in the early days, Alicia, before all this existed, there was quite a market of charging for nationals, large sums of money to secure employment opportunities in Canada. And you know, and so individuals would be essentially indentured servants, trying to pay off this money and then come and taking minimum wage jobs in Canada, and I shouldn't say minimum wage, but you know, lower paying wages, that would likely only be enough to sustain them here, let alone paying back this healthy debt. And I remember working with, you know, some well known franchises who were recruiting from the Philippines for food, counter attendants and positions like that, and had no clue, no idea that on the other side, the recruiter was charging one to $3,000, whatever it might have been to the worker without telling the employer. And because this is all happening overseas, across the ocean, or wherever they're pulling from, it's really hard for employers to be able to identify that. So in this, you know, the only reason it came to the forefront usually is when employees become you know, disenfranchised with what's happening, and, and they tend to then find a job with another employer, and then they're willing to talk once they've got security. And so it often doesn't surface until a year later you find out that these workers are being charged money illegally. So that's, that's really what's driving this to a large extent. Okay, let's shift to number three.
Number three is, you know, make sure that you as the employer understand whether you are hiring under the imp, right the international mobility program with an LMIA exemption, or if you are under the temporary foreign worker program with an LMIA requirement. And Mark, you and I have gone through extensively, we have, if you look back at our kind of podcast series, starting around Episode 100, we talk about this, how you determine this, whether you go down the LMIA route, whether there's an exemption that you could rely on. So make sure that you understand that because timing wise process wise, if you're lining this up, it has a significant effect on your timeline. So one of the questions employers always ask us at the beginning is, how long is this going to take? Right? And the answer really depends on whether you have to go through and get an LMIA. Because if you need an LMIA, you better bacon, another four weeks of continuous advertising, and about two months of VSDC. And then of course, it always comes down whether you're under the imp or the temporary foreign worker program. The key aspect is does the person you're trying to recruit and bring over as a new employee? Are they visa required? Are they from a country where it's a requirement for them to obtain a visa? If so, then you've got to put in an online application. And if not, you might be able to do an application right at the port of entry.
Exactly. And that kind of jumps and blends three and four together there for us. Obviously, it's hard sometimes for us as counsel when our Our employers have already identified who they want, and, and they're ready to go. And then we have to tell them well, okay, you're gonna need to advertise for this position that you've already extended, in some cases extended offers. And again, go through that process because this individual is not eligible for one of the various work permits under the international mobility program. And like Alicia said, if you can go back to Episode 100, our business immigration series, which, of course, this is one of those episodes, and check it out, but the, the timing is always a little bit problematic, and any employers looking to hire a foreign worker needs to realize that it can take a little bit of time, it's a long game strategy, not necessarily a short, quick fix. Now, obviously, there are differences between the temporary foreign worker program and the international mobility program, and the nationality of the individual who's applying and in some cases, yes, we can turn things around very quickly. But generally speaking, you need to plan.
And so that's why Tip number four is making sure that you're planning your timing your process and your retention. And because sometimes, if you are strategic about your business immigration plan, you can ladder these things, right, just like a financial investment, you can say, okay, in year one, I'm going to have this process for an LMIA. For this position, I'm going to roll that into year two, where I've started my next LMIA, because I know I have a chronic shortage in this northern BC office or this northern Alberta office of this type of profession. And then you can go into year three, and that way, companies are never scrambling to try to get an LMIA. At the very last second, they have those in their back pocket, they have a valid LMIA, that's hopefully going to be valid for 12 months. And that worker as long as they identify them, and are able to slot them under that LMIA have any time within that 12 month validity period to apply for their work permit. So it doesn't mean that the work permit has to be approved within the 12 months, it means that the worker has to have a pod. So that's one thing to keep in mind. And the other part of the retention of point number four is, it is so important that you are clear right from the get go what your immigration goals are with you and your employee. And that might change. But you always want to set it up so that if that employee ends up being a stellar workforce candidate and part of your team, you don't want to lose them, because you didn't do some of your due diligence at the beginning and making sure that they are an admissible, eligible that their family situation is such that they could actually qualify for permanent residence. So make sure to do that right up front as well.
And, you know, it's interesting, Alicia, as I, as I look at how this all plays out, and the whole, you know, how challenging it can be for employers, when we have these discussions with them. One thing I always always bring up is that you have to do this if you want to bring the foreign worker in. But so do your competitors in your industry. And if you are a company that's proactive and kind of bite the bullet and do it early, you know, as you're competing for those best and brightest candidates, whether you're, you know, within the construction industry, or whether you're an engineering firm, you know, when individuals are coming in, and they you know that all of your competitors within your particular industry require a Labor Market Impact Assessment, if you can put these, you know, these plans in place, get unnamed LMIA A's in place, then you're going to be so much further ahead when it comes to bidding on contracts. And because that's really the the most difficult part of bidding on large scale construction or other, you know, contracts is, is that it's the it's being able to quantify the labor that's needed. And, and the timing of being able to get it and know that they're going to be there when the project starts. So that's something to keep in mind always that if you have to do it, your your other competitors have to do it as well. So you make the sacrifice and you'll be able to benefit. But once again, it's more of a long term strategy.
And for point number five mark, one of the things in terms of that long term strategy is, is making sure that as an employer, you've got your house in order. You have the clauses that are built into your template employment agreements that are required if you're going to be hiring foreign workers, either under the imp or the temporary foreign worker program. And we talked a little bit about making sure that recruiters are not charging any money in any sort of way shape or form back to the employee. It's also important that there is an employment agreement in place and it is signed prior to the employer portal being submitted if you're doing an imp or before they start working if they come under an LMIA and One of the things I always recommend is to have that employment contract contingent or conditional upon the company obtaining an LMIA, if that's required, and or the employee obtaining and maintaining proper work authorization and temporary resident status in Canada, because it is illegal for employers to hire anybody who is not properly authorized to work. So a lot of companies, most companies don't have that in their template contracts.
Excellent. All right. Let's jump to number six.
So sure, we're talking about a few compliance things. And one of them is making sure that you are following employer standard Employment Standards Code as well as your workers compensation requirements. And so this is where you can be audited. This is where you can get in trouble with provincial registration. But it's also just bad business practice not to make sure that you have internal controls for pay for payroll for deductions for your CRA. And often the workers compensation coverage, clearance letters are something that the government would like to see doing an LMIA. So make sure that those things are properly set up. Because once a temporary foreign worker is on payroll, they're just like any other employee. And they are required to obtain the same coverage, especially for workers compensation or potential injuries at work.
And when you have these things in place proactively, just like we discussed in the first few points here today, you're going to be able to get the worker here faster. Anything that is reliant upon a third party to issue a document to you whether it's employment standards, like the recruiting process, and getting your employer recruiter, certification in place, whether it's that workers compensation, anything that requires you to apply to some third party entity, it's going to delay the process, it's going to delay how soon you can get the worker here. So when you take care of these, and you have like, at least you set all your ducks in a row, you are going to be in a much better position to bring that person faster. And I think that's that's of interest to most employers for sure. Yeah.
And again, like I can talk from experience, and I won't name names, but sometimes companies have a number of branch offices. And they realize that they want to bring in somebody under an imp, right, they're coming in under an open work permit, no problem. They don't have to do anything under the employer compliance portal, with a with an offer of employment or in a number and Oh, number, they just great. They can come work for them. And I said, Well, wait a minute, that branch office, is it covered under your workers compensation plan? Oh, maybe not. Maybe it's the head office that's covered under workers compensation. And so things like this can can trip companies up. So just make sure. And the other thing is, is making sure that you have a process to follow if you do have things like probationary periods in your contracts, and make sure that you have a way of reviewing employees quality of work, and that there's a report that's actually produced. And sometimes companies are pretty pro forma about this, right? They just have all these clauses in their contracts. And they don't actually make it real in terms of what happens on the ground, but make sure that you do have these things in place. Because even if you're not under the employer specific provisions, it's always possible for foreign workers to say, hey, this isn't fair. And if your processes aren't fair, that is a potential liability for sure. Indeed.
Okay, number seven.
Number seven, is maintain substantially the same provisions. And this is largely for the LMIA. But it's also a potential problem, if you're deviating from what you said you were going to do in your initial signed employment agreements. And that's for both the imp or the LMIA streams, or the temporary foreign worker streams. So often, companies have no idea that they cannot give types of foreign workers large pay raises. Why would that be work?
Yeah, that's a huge issue. And one of the things I'm dealing with right now, Alicia, with other employers with an employer is that they want to pay bonuses. And things are, you know, have gone well, but the contract and what was registered with the temporary foreign worker program does not contemplate that. And so they're they're in a real real fix here, because by paying that individual a big bonus, and not having it already included within the terms of employment and the compensation structure, they could be found to non you know, not complied with there. or requirements. And usually on the temporary foreign worker side, people think well, isn't the danger just that you're not paying them what you said, and you're taking advantage of them? Well, what's the danger? You know, what's the problem with paying them more? Well, the temporary foreign worker program, they, the officers would then say, well, if Canadians knew there was going to be this big fat bonus attached to it, they would have applied for the position, right. So this is what they're this is kind of the push poll that we're dealing with.
Yeah, and this, this goes all the way back. So this goes back 2.5, in terms of what you put in your employment contracts, and also even before that, if you're under the LMIA streams, and you're under the temporary foreign worker program, if you didn't advertise, just like you said, Mark, if you didn't advertise a bonus as part of this job, then Service Canada ESDC can say, Well, wait a minute. This isn't a legitimate recruiting effort if Canadians didn't know about this. And so I always recommend, you know, often employers are like, Okay, what should we put for wage? Alright, here's the wage. And then there's a section where it asks you bonuses, what other sort of, you know, mileage discretionary contingent fees? Would they be receiving and the employer is like, Oh, nothing, nothing. And like, Well, wait a minute, what, if you five years from now really want to provide this person a bonus? Make sure to advertise that and then make sure it's in your contract as discretionary? You know, it's based on the employer sole discretion or what have you, or performance reviews, or whatever it is, but bake it in right from the beginning, because that's really important. Understand that you have to pay your employees, what you've said, you're going to pay them and you can be audited. And in terms of also paying your employees, some employers go to the other extreme, they get so nervous about having a foreign worker on payroll, that they say, wait a minute, the foreign worker doesn't have a social insurance number, I can't pay them. And that's actually not quite correct. Yeah, right. And so if you go and you take a look at ESDC's website, on social insurance numbers, any foreign worker is going to have a social insurance number that starts with a nine. And if you have somebody that starts with a nine, or somebody who has a valid work permit, but has not yet received their social insurance number, employers still need to pay them. So that person will prove Yes, I've applied for my social insurance number I'm waiting it for for it to be actually issued the first time. Or sometimes what happens is that person has had their work permit, expire, and they have submitted an extension application before the expiry and they're waiting for an extension on their work permit. And in that case, their social insurance number is going to be tied to the original work permit, so it's going to expire. But that doesn't mean you can stop paying people. So you just have to and and actually, it's on the website for ESDC. It says, Look, if you just need to keep your records, make sure that that person can prove they submitted their work permit application while they were still in status, and you still have an obligation to pay.
Indeed. And on this topic of substantially the same employer compliance, I direct you back to Episode 113, which is the episode where we covered this in detail. Just some of you might need a little refresher, you know, others, this might be news to you, but it's definitely worth listening to. Alright, number eight.
And so number eight is actually making sure that corporate culture and policy and training and existing employees are ensuring the workplace is free of abuse. And it's not just physical abuse. It's also emotional or psychological abuse, or its reprisals if temporary, foreign workers come forward with, you know, something shady, that's happening. And so, you know, I've had employers say, Well, I have the work permit, right, my my company lawyer apply for their work permit, and I don't want to give it back to the employee. Well, that's never allowed, right. It's not the company's work permit. It's the employees work permit. Similarly, employers can never keep the foreign workers passport, or threatened to deport them. So even if you've fired an employee for whatever, either for cause or without cause. The employer can't deport them, right, the employer can definitely notify IRCC that they are no longer in their employment. But that work permit isn't necessarily invalid. It's just that the person can't work for any other employer if it's an employer specific work permit. So things like that. Make sure there's no charging or recouping of fees unless you've really written that into the employment contract. Right? If you had something where the employee had to repay you, maybe legal fees, or something else like that, be careful about how you structure that and do take a look at our blog on the whole the Immigration Law website about the changes and the mandatory online PR portal requirements for employers because it is important that you writing these things down and providing employees with a Know Your Rights document, there's one that's a little bit different for the Imp and a little bit different for the temporary foreign worker program. They're very similar. But this is where employers need to post this either on their website or in their materials that they give new hires, sometimes in our lunch room.
So if you go to hold the law.com, go to our blog section, and then look for the article entitled new requirements for Canadian employers who employ foreign nationals, and that was released on September the 28th of last year. So go check that out, there also be a link in the show notes for for that particular blog. All right, number nine.
Number nine is just making sure that as a matter of course, if employees become injured, or ill at the workplace, that they can access health care services. And under the low wage LMIA process, employers actually have to provide health care coverage and transportation to and from the workplace. If you're under the high wage LMIA, you need to cover a gap until the employees provincial health care coverage kicks in. So two things, make sure that you're complying with the LMIA requirements under higher the wage, but also in general for everyone under imp, or otherwise, make sure that if somebody's injured or sick at work, you don't have to always provide health care coverage. But you have to make sure that that person can access medical care and treatment.
All right, as we transition to our final top 10 essential tips for employers who employ foreign nationals. This is hard Alicia, you know, we've been at this for 20 years. And it's hard to stay on top of all of these rules and all of these regulations and all the expectations, just for the purposes of hiring a foreign national, while at the same time our HR managers and Global Mobility specialists are, are just trying to stay on top of their human resources, Employment Standards, all these different things. And so this leads us to number 10, which is and I'll I'll have no no issues, bring this one up for sure. It is super important to get help when you need it. And one of the things we do with our firms, with our with our clients, is we are big on education and teaching. And the most important priority we always have whenever we're helping, whether it's a large multinational company, or whether it's an individual looking to immigrate to Canada, we want them to know what they need to know to be successful. And sometimes that's not always the case in our industry, sometimes, you know, representatives feel like they want to keep the knowledge, because that's their their leverage to get the company or the individual to continue hiring them. But that's not how we practice. And we know that the best results are going to happen. When our clients know what we know. They've got the underlying facts, and, you know, documentation, everything that's needed to apply for whatever application, but we understand the law. And when you marry those things together, you're gonna get a great result. So number 10, get help from experienced immigration lawyers to ensure you're up to date with all these crazy changes.
And it's also important, just like you said, Mark for employers to know what's going on so that when ESDC or IRCC, or an officer eventually calls them and asks them what's going on, or there is some sort of employer compliance review or an audit, they actually can understand and articulate what they did, why they did it, and what the result has been. And so everybody's gonna get better results when they are well informed. And they are up to date.
Exactly. One of the things as a firm that we do is is audits for our employers. And so if you've been involved in the temporary foreign worker program, or the international mobility program, for years, it's always great to have an audit just to make sure that you are compliant. It's far better to have it all in place and know that you're, you're compliant before that phone call come. So that email comes seeking documentation, you know, to prove those inspections to prove compliance. And so that's something that we do and whether you've been involved in the program for years or whether this is your first introduction to it. And you just want to make sure that you're doing it right upfront. That's something that we can assist you with. And all you need to do is go to the firm website Houthi law.com and just click on the link that says speak to a lawyer and we can set up a call and and assist you. All right, thank you so much, Alicia. Great top 10s here for employers. And we'll be back again in the future with more helpful podcast episodes covering A wide variety of topics on Canadian immigration. Take care.
