It’s a long-running joke that the government likes to make major regulatory or practice changes during a public holiday or right before a long weekend. The latest crop of business immigration related changes came right before we rang in the New Year, with an effective date of Dec. 31, 2013. The changes presented some challenges regarding news forms, but also provided insight into how the government perceives the temporary foreign worker program and its continued use in Canada.
Specifically, the new rules give Employment and Skills Development Canada and Citizenship and Immigration Canada considerable powers to delve into a company’s temporary foreign worker recruitment and retention process. The government has continued to shift much of the burden of compliance with the program to employers through the use of several new attestations.
These changes to the attestations considerably narrow the window an employer could use for mitigation. Forced compliance is likely a good thing, but will it save these government agencies from the black eyes they are working to avoid?
ESDC and CIC have established rules that now allow them to enter an employer’s premises and request documentation regarding recruitment practices for any labour market opinion filed within six years. As the new rules just went into effect, they can currently still only go back two years when looking at compliance. However, in 2020 they will be able to go back a full six years to review compliance. Because the effect of the longer look-back won’t be felt for a few years, there is plenty of time for employers to get their houses in order. As counsel, it’s imperative we advise them they must do this immediately.
What can ESDC or CIC actually do as part of this audit? They can go to the employer’s premises without a warrant, or ask that the employer meet in another location, and ask to see all information used in a LMO or immigration application for a temporary foreign worker. This includes copies of ads placed, employment contracts entered into, resumes received as part of recruitment, proof of efforts, etc. for any LMO filed by the company in the requested time period.
It seems innocuous enough. Employers should keep records, and most do. However, six years is a long time to keep every resume that comes in for a job, and for some companies, this could become a data storage nightmare. In many cases, this information is submitted with the LMO application anyway so the government has it from the application phase.
Employers are compelled to provide this information, as they must attest they will on the new attestations. An employer who takes issue with this can do so, but also cannot file an LMO application. The attestations, it will be argued, gives the government the employer’s “consent” to spot audits, as well as their tacit agreement the undersigned has “. . . read and understood [the requirement] and I have complied and will continue to comply” with each of the expectations the government has laid out. There’s very little place to hide.
Which brings us back to one of the key issues: transparency. The word I have referred to time and again throughout my columns and with my clients. Transparency. It’s what we all want. Tell me what the rules are and I will play by them. From a lawyer’s perspective, this is good. It’s clear. Well, clearer, and it lets everyone play on the same field.
But the real concern is whether this will give the government what it seems to be wanting, some protection from the proverbial black eye it received during 2013’s temporary foreign worker scandals. It won’t prevent an issue like the Chinese miner case in Vancouver. Why not? Because in that case, everyone seemed to have played by the rules. It was just an unpopular outcome.
It may be a different story with the outsourcing issue. Outsourcing and offshoring are specifically asked about, but neither the site audit nor attestations appear to be sufficient to monitor whether an outsourcing or offshoring was potentially caused by hiring a foreign worker. But in the event it is shown that occurred, the government can say, “The company specifically signed an attestation!” and wave it around to the media to say, “They lied to us, too!”
It’s another story as well when looking at issues of pure abuse of the program. Long-term audits will ensure employers, especially those who utilize the temporary foreign worker program in greater numbers, will take on more accountability and be forced to justify in cases of breach.
By having stronger attestations, it gives the government much more authority to invoke the penalties it has, such as barring the Canadian company from bringing in a temporary foreign worker for two years. It allows the government to act on these things, which in the end, will hopefully create a more level playing field.
These are important changes that have a huge impact on all areas of business law. Company reputation and the ability to remain agile and competitive are key issues with most multinational companies, so it’s more important than ever general counsel, immigration counsel, and corporate counsel work together to ensure the government doesn’t get a black eye, and the company understands the rules.
