Proposed Regulations Add Teeth to the CIC/Service Canada Employer Blacklist

Meurrens LawWork Permits

On June 7, 2013, the Government of Canada introduced regulatory changes which will take soon effect at a date to be determined (the “New Regulations”).  The New Regulations will impact all employers of foreign nationals in Canada.  Specifically, the New Regulations will impose new conditions on employers and increase the government’s ability to ensure compliance with those conditions.

Previous Announcements

The New Regulations follow a previous Government of Canada announcement on April 29, 2013, in which it announced the following changes to the Temporary Foreign Worker Program, which will also soon take effect at a date to be determined:

  • The Government of Canada will begin working with employers to ensure that temporary foreign workers are relied upon only when Canadians genuinely cannot fill those jobs;
  • Increasing the recruitment efforts that employers must make to hire Canadians before they will be eligible to apply for temporary foreign workers, including increasing the time span and reach of advertising;
  • Helping employers who legitimately rely on temporary foreign workers, due to a lack of qualified Canadian applicants, find ways to ensure that they have a plan to transition to a Canadian workforce over time;
  • Restricting the identification of non-official languages as job requirements when hiring through the Temporary Foreign Worker process; and
  • Introducing user fees for employers applying for temporary foreign workers through the Labour Market Opinion (“LMO”) process.
The New Regulations

Contacting Employers Directly

Once the New Regulations take affect, Citizenship and Immigration Canada (“CIC”) will have the statutory ability to contact employers directly to verify information contained in work permit applications.  Previously, all officer requests for additional information went through the applicant.

Clarifying Substantially-the-Same 

The New Regulations affirm that officers must be satisfied that employers who are seeking to employ foreign nationals have employed their previous and current foreign nationals in substantially-the-same positions as what was in their Labour Market Opinions and/or offers of employment (“STS”).

The New Regulations increase the period of STS monitoring from two-years preceding a an application to six.  As well, in most cases, an application will no longer be required to trigger an STS assessment.  An implication of this is that workplace inspections (discussed in more detail below) may be conducted of employers from the first day of employment of a foreign worker up until six years after the last day of that employment.

In addition, the New Regulations reword STS from “substantially the same” to “substantially-the-same, but not less favorable then.”  This presumably means that any reduction in foreign worker pay can result in a negative STS finding.

Finally, in 2011 the Government of Canada announced that employers with negative STS findings which the employers could not justify would be added to what has colloquially been referred to as the “employer blacklist” (the “Blacklist”). Employers on the Blacklist will be prohibited from employing any foreign nationals for two years.  To date, no employers have been added to the Blacklist.  This, however, is likely to change.  The New Regulations provide that officers who determine that an employer has a negative and non-justified STS finding must add the employer to the Blacklist.

Conditions on Employers

Most employers of foreign nationals must comply with the following conditions during the course of the employment of the foreign nationals:

  • Be actively engaged in the business in respect of which the offer of employment was made;
  • Comply with federal and provincial laws which regulate employment;
  • Provide the foreign nationals with employment that meets STS requirements;
  • Make reasonable efforts to provide a workplace which is free of abuse, including physical abuse, sexual abuse, psychological abuse, and financial abuse;
  • Not be convicted of human trafficking, unless there has been a pardon granted or a record suspension;
  • Not be convicted, or receive a discharge, of any offence trafficking in persons (or related offence), an offence of a sexual nature (or an attempt) against an employee, an offence causing death or bodily harm to an employee, uttering threats to cause death or bodily harm against an employee, or an offence involving the use of violence (or an attempt) against an employee. In addition, the employer must not be convicted outside Canada of an offence that would constitute one of the above offences if committed in Canada, unless there has been a final determination of an acquittal.

In addition to the above, employers of Live-in Caregivers must also:

  • Ensure that their caregivers reside in a private household in Canada and provide child care, senior home support care or care of a disabled person in that household without supervision;
  • Provide their caregivers with adequate furnished and private accommodations in the household; and
  • Have sufficient financial resources to pay their caregivers the wages that were offered.

Employers who received a Labour Market Opinion must also:

  • Ensure that the employment of the foreign nationals will result in direct job creation or job retention for Canadian citizens or permanent residents, if that was one of the factors that led to the issuance of the work permits;
  • Ensure that the employment of the foreign national will result in the development or transfer of skills and knowledge for the benefit of Canadian citizens or permanent residents, if that was one of the factors that led to the issuance of the work permits, and
  • Hire or train Canadian citizens or permanent residents, if that was one of the factors that led to the issuance of the work permits.

Absent a reasonable justification to comply with any of the above conditions, the failure to comply with most of the conditions above will result in the employer being added to the Blacklist.

Enforcing Compliance

New powers are being given to CIC and Human Resources and Skills Development Canada (“Service Canada”) to enforce compliance with the above conditions.  Under the New Regulations, an inspection may be triggered if:

  • a CIC officer or Service Canada Officer has a reason to suspect that the employer is not complying or has not complied with any conditions imposed;
  • the employer has not complied with the conditions in the past; or
  • the employer is chosen for random verification of compliance with the conditions.

Depending on the scenario, both Service Canada and CIC can require an employer to report at any specified time and place in order to provide documents and answer questions that relate to compliance with the above conditions. As well, employers who are subject to the above conditions must report at the specified time and place when requested to do so.  Unless there is reasonable justification to not attend, failure to do so will result in a finding of non-compliance.

Service Canada and CIC are also being given the power to enter and inspect any premise or place in which a foreign national performs work.  Employers must give reasonable assistance to officers conducting inspections, and provide inspectors with any documents or information that they require.  Indeed, the New Regulations even specify that employers must allow inspectors to use their photocopies to make copies of relevant documents, and, where this is not possible, officers can remove original documents from an employer’s premise.  The New Regulations also specify that employers must provide inspectors access to computers and other electronic devices located on the premise.

The New Regulations empower officers to pass through and enter private property for the purpose of conducting inspections.   In the case of a dwelling-house, a warrant can be issued ex parte if an individual does not consent to an officer entering the premise.

The proposed inspection authority will allow Service Canada and CIC to verify whether the information provided by the employer at the time of the LMO request or work permit application was accurate, and whether the employer complies with the conditions imposed on them during the period of employment of foreign workers.

Other Changes

Individuals will not be eligible to participate in the Federal Skilled Trades Class if at least one of the prospective employers is on the Blacklist

Finally, the regulations codify that no temporary residents, regardless of whether they need a work permit to work in Canada, may enter into employment agreements with employers who on a regular basis offer stripping, erotic dance, escort services, or erotic massages, or work for an otherwise non-compliant employer.

The above changes will obviously have significant implications for employers, and we will update you as more information becomes available.

More information about the New Regulations can be found here.