Law Times

Law Times • march 5, 2012 FOCUS ON Immigration Law Foreign workers lations introduced last year, immigration lawyers say. The immigration and refugee protection Make compliance a priority, companies told C BY MICHAEL McKIERNAN Law Times ompanies need to make immi- gration compliance a priority when it comes to employing for- eign workers in the wake of regu- regulations came into force on April 1, 2011. They gave Human Resources and Skills Development Canada new powers when providing a labour market opinion that's necessary in many cases when employers wish to hire foreign nationals. The federal department must now assess the genuineness of a job offer as part of its labour market opinion. It also now has the power to check up on companies to make sure they're employing the workers under the same wages and conditions they prom- ised in the application. Violators risk ending up on a list that can bar them from hiring new employees under the temporary foreign worker program for two years. "This legislation is about going after the 'If you're looking for answers from us about how Ottawa's going to interpret these regulations, we don't have them because they don't have them,' says Peter Rekai. employers and putting the onus on the employers. That is a huge seismic shift in how the foreign worker program is being run," said Gabriela Ramo, a senior lawyer at Greenberg Turner. "Compliance with immigration has to go right up there with tax compliance. I always compare it with tax compli- ance because that's the one that really makes them stop and think. If they have a compliance officer, this should be on their desk and if they don't have one, they should get one." Ramo was addressing the citizenship and immigration law session at the Ontario Bar Association's Institute 2012 on Feb. 10 in Toronto. She noted employers haven't traditionally had to worry too much about non-compliance because typi- cally it was the employee who felt the consequences. "Unless it was a huge violation all over the press, they never went after the employers," said Ramo. "You need to start with a policy and do a culture change at the company so you tackle those managers who used to call the employee and say, 'Oh, just come in and say you're going to Niagara Falls. It's no big deal.' That haunts you now, so you need to get that message across your company that none of this will be tolerated anymore because the stakes are too high." Ramo encourages clients to undergo internal audits "so you find the issues before the government finds it for you. You're working from a position of strength because you're not dealing with it from a reactionary standpoint." Program co-chairwoman Jacqueline Bart said the regu- lations are proving just as big a headache for immigration lawyers as for businesses because of the difficulty they've had in interpreting them. "This has not been thought through enough. It's ill- defined and it's too broad but it's not going to go away and hopefully it will be tweaked. We know this is the path forward. We're not going back to the old easy system and we'll have to get used to it." Peter Rekai of Rekai LLP echoed those sentiments, say- ing the government drafters of the regulations failed to grasp their full impact. "If you're looking for answers from us about how Ottawa's going to interpret these regulations, we don't have them because they don't have them," he said. "All we can do really is to anticipate all the problems that are going to come up. They have no practical under- standing of the can of worms they were opening." A chief example of the broadness of the regulations comes in the new genuineness provisions, according to Rekai. One of the factors for the department to consider when assessing genuineness is that the job offer is "consistent with the reasonable employment needs of the employer." Rekai said that was a needed reform because under the old system, companies were able to prove a general labour market need in Canada for certain occupations, such as accountants or auditors, without having to justify their own specific requirements. "I think there were many instances when HRSDC looked at the hiring request for an employee and said, 'This just doesn't make sense. Why would they need this type of employee in this type of organization?' They didn't have the power to look behind that but they do now with genuineness." However, a second prong of the genuineness test requires employers to attest that they're in compliance with all federal and provincial laws regulating employment. "It's a bizarre place to put the consideration, that basically a part of considering genuineness is determining whether the employer is a good corporate citizen," said Rekai. "And the criteria are wide open. That is a monumental burden to put, certainly on any large employer." The definition is so uncertain that in theory, according to Rekai, the government could consider violations of collec- tive agreements as part of the genuineness test. "There's nowhere in the regulations that really limits the consideration of what is a violation that would reason- ably be considered as a reason for refusing an LMO for Recruiting? Post your position on GREAT RATES. GREAT REACH. GREAT RESULTS. Contact Sandy Shutt at sandra.shutt@thomsonreuters.com for details. www.lawtimesnews.com JobsInLaw 1-8 pg 5X.indd 1 2/15/11 4:12:27 PM genuineness," said Rekai. "You can only hope and pray that they will be reasonable." In addition, he said human resources personnel have been reluctant to assume responsibility for attesting to their com- pany's clean employment record and instead pass the issue up the chain of command or to the in-house counsel. "It's frozen some of the systems that companies have normally employed to deal with LMOs," said Rekai. According to Ramo, the regulations' assessment of whether employers are treat- ing existing foreign workers as they prom- ised they would is equally problematic. When the government first pro- posed the regulations in late 2009, Ramo said most people assumed the provi- sion was targeted at abusive behaviour by corporations that may have claimed they were hiring a foreign national for a high-paying job only to put them in a lower-paying one with different respon- sibilities. However, the government has indicated its audits will also deal with foreign workers paid more than origi- nally indicated. "The idea is that if you posted an ad that said you were going to pay someone $100,000 and it turns out now you pay the foreign worker $120,000, well maybe other Canadians would have applied at that level, so it wasn't fair advertising," said Ramo. The problem is that nobody knows when the situa- tion crosses the threshold. "Is it five per cent? Is it 10 per cent? There is no guidance," said Ramo. "The problem is we as counsel can't give our clients any sense of certainty because there's no definition." Ramo encourages her clients to err on the side of cau- tion and write to the officer who issued the labour market opinion to report the increase in pay. "Sometimes we get a call back. More often than not, I think they look at it and go, 'We don't know what to do with this' and just do nothing. But at least you've protected your client," said Ramo. Promotions and changes in duties cause similar prob- lems, said Ramo. Before the regulations she said she'd only advise employers to apply for a new labour market opinion if the job changes took the employee into a different category of the national occupational classification. In one recent case involving a new job that kept the employee in the same category, Ramo noted she called three different federal government officers for guidance on whether the employer had to report the change and got three different answers. In the end, she went with the safe option and applied for a new labour market opinion. But with processing times leaping to 12 weeks from three weeks, even that option may become less satisfactory in the future as employees and employers are reluctant to wait before executing promotions. "There was supposed to be serious funding that came along with compliance," said Rekai. "That's not happening. What's happening — and we're seeing it — is the people phoning up our employers to do compliance audits are the same people who are supposed to be working on our new LMOs." LT PAGE 9

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