STS – Substantially the Same – and the Employer Black List

In a previous post I wrote about how employers seeking to hire a temporary foreign worker will now have to pass the STS test.  This generated some interesting feedback, and I want to expand on the new test.

Substantially the Same, or STS, is an assessment of whether an employer has provided its other foreign workers wages, working conditions and employment in occupations that were substantially the same as those items set out in the employer’s job offer during the period beginning two years prior to an Application for a Labour Market Opinion or a Work Permit.

If there has been a failure to comply with a previous job offer term, employers will be given an opportunity to justify any discrepancies. Reasonable justifications include:

  • A change in federal/provincial/territorial law or a change to a collective agreement;
  • Changes the employer had to make in the workplace in response to a dramatic change in economic conditions that were not directed disproportionately at foreign workers;
  • An error made in good faith by the employer in interpreting obligations regarding wages, working conditions or occupation, and the employer has provided or made sufficient efforts to provide compensation to any foreign nationals that have suffered a disadvantage;
  • An administrative accounting error by the employer, and the employer has provided or made sufficient efforts to provide compensation to any foreign nationals that have suffered a disadvantage; or
  • Circumstances similar to those set out above.

Employers who have failed to meet their commitments as promised in past job offers, and who have failed to provide reasonable justification or to rectify the situation by providing appropriate compensation to the former employee may face:

  • The refusal of work permit applications for any foreign national offered a job by that employer;
  • Ineligibility to hire a temporary foreign worker for 2 years; and
  • The employer’s name displayed on CIC’s Temporary Foreign Worker Program’s Ineligible Employers website.

Temporary foreign workers will lose their temporary resident status if they accept a job offer from an employer who has been deemed ineligible to employ temporary foreign workers.  This applies to temporary foreign workers who wish to extend their employment with a company – they will be unable to do so.

In the case of large corporations with numerous offices it is unclear as of yet whether the two-year ban will apply to all offices or just the one that committed a breach.  As noted previously in this blog here, the amount of information that employers may have to provide to demonstrate STS may be quite large.  The Service Canada website states:

All returning employers must demonstrate that they have met the terms and conditions of employment set out in previous LMO confirmation letters. In addition, some employers may be required to submit documentation to support any or all of the following documents:

  • payroll records;
  • time sheets;
  • job descriptions;
  • copies of the employer-employee contract;
  • collective agreements;
  • TFW’s work permit ;
  • provincial workers compensation clearance letter or other appropriate provincial documentation;
  • receipts for private health insurance (if applicable);
  • receipts for transportation costs; and
  • information about accommodations provided by the employer.

It is also unclear when it will be Service Canada that does the STS assessment, or when it will be Citizenship and Immigration Canada, or even the Canada Border Services Agency.  As one immigration lawyer recently noted, you can have the seemingly absurd scenario of a temporary foreign worker arriving at Vancouver International Airport with a suitcase full of information about his employer, including the payroll records of other employees that he will soon be working with!

It is hard to imagine that that is the legislation’s intent, however, until the specifics of how the STS evaluation will work are clarified, there will continue to be legitimate privacy concerns with the changes.


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