Foreign workers have become an important part of the fabric of the Canadian labour market, as a significant portion of the Canadian workforce is trained outside of Canada.

The Temporary Foreign Worker Program was introduced in Canada to meet the needs of the Canadian job market and address the challenges of labour shortages.

Temporary foreign workers are internationally trained workers. Canadian employers have increasingly relied on foreign workers to offset any gaps they may face in the labour market. As an employer in Ontario looking to hire temporary foreign workers, ensuring everything goes smoothly can be critical to the success of your business.

The following article summarizes important information required for employers interested in hiring temporary foreign workers.

How To Hire A Temporary Foreign Worker

To hire a temporary foreign worker, the employer must complete a Labour Market Impact Assessment (LMIA), issued by Employment and Social Development Canada (ESDC). The LMIA assesses the impact of hiring a foreign national in Canada.

A positive LMIA is a confirmation by Service Canada that a foreign worker is required in the province, and the employee will positively impact the Canadian Labour market. However, a negative LMIA indicates that hiring foreign nationals will not positively impact the Labour Market. The responsibility to apply for an LMIA falls on the employer. 

It is the employer’s job to recruit, interview, and hire suitable migrant workers who meet the job requirements. In addition, the employer must provide a job offer that meets prevailing wage rates and labour standards.

As of 2022, the median wage rate in Ontario is around 26 dollars per hour.

Once ESDC provides a positive LMIA and approves the job offer, the employer sends a copy of the LMIA and a letter of employment to the foreign worker so that they may apply for a work permit. To apply for a work permit, a worker needs:

• A job offer letter;
• A contract;
• A copy of the LMIA; and
• The LMIA number.

As mentioned previously, the foreign worker may need a work permit to work legally in Canada. Work permits are employer-specific unless a worker has an open work permit. If a worker wants to change employers, they must obtain a new work permit before they can start another job in Canada.

Canadian work permits are also limited in duration, and upon expiry, the employee may be expected to leave the country.

What Are The Legal Risks of Hiring Temporary Foreign Workers?

Hiring temporary foreign workers can be complex for a Canadian employer. Getting the necessary permits and documentation in order can be difficult and time-consuming.

Whether your business needs to hire foreign workers or obtain a work permit for a newly hired employee, procedural accuracy is vital.

If an employer fails to comply with the required procedures, they can be held liable for non-compliance. The penalties for non-compliance vary depending on the level of non-compliance. Various factors are considered in the evaluation, such as the number of program violations, how serious the violations are, and compliance history.

Employers that hire foreign workers should consider conducting internal audits to determine whether they are in compliance with the conditions of all LMIAs.

In the case of LMIA-exempt workers, employers should review the terms and conditions of employment specified in the work permit application and employment contract.

In addition to the conditions outlined in LMIAs, the Canadian legal system also protects temporary foreign workers’ rights. The employer cannot treat temporary foreign workers any differently from locally hired workers.

In Ontario, this means they are offered similar protections as local employees under the Employment Standards Act, 2000, Human Rights Code, and Occupational Health and Safety Act.

Canadian employers have an obligation to provide the following:

• Give the temporary foreign worker information about their rights;
• Give them a signed copy of their employment agreement on or before the first day of work;
• Pay them for their work as stated in your employment agreement;
• Make reasonable efforts to provide them with a workplace free of abuse, including reprisal; and
• Follow the employment and recruitment standards of the employer’s province or territory.

The employer cannot:

• Force the temporary foreign worker to perform unsafe work or work that your employment agreement does not authorize you to do;
• Force the temporary foreign worker to work if sick or injured;
• Pressure or force a temporary foreign worker to work overtime not included in the employment agreement;
• Take the temporary foreign worker’s passport or work permit away from them; or
• Make the temporary foreign worker reimburse recruitment-related fees they may have paid to hire them.

Some provinces have additional protections specifically for foreign national employees.

For example, in Ontario, foreign employees have additional rights under the Employment Protection for Foreign Nationals Act, 2009. Violating these statutes can result in serious damages, fines and penalties for employers.

How an Employment Lawyer Can Help

Hiring a temporary foreign worker takes time, so it is recommended that employers begin the process as soon as possible.

The application process can be confusing if you have not gone through the process before. In addition, errors and/or issues that may arise during the application process could cause delays.

There is no substitute for speaking to an employment lawyer to understand the process to hire internationally trained employees and comply with the law.

Whether you want to hire a temporary foreign worker, ensure you are complying with the relevant statutes, or just have questions about LMIAs, an employment lawyer can provide clarity and peace of mind.

Conclusion

Internationally trained workers bring a diverse set of skills and expertise, which, over time, have proved to be quite valuable for the Canadian labour market. Hiring temporary foreign workers may be essential to the growth and success of your business. Therefore, employers should ensure that they understand the requirements for hiring temporary foreign workers and are aware of any legal risks.

Related Articles

Labour Market Impact Assessment (LMIA) – Important Timelines And Considerations

What Requirements Do Employers Need To Meet When Applying For An LMIA?

5 Mistakes Employers Make When Filing LMIAs

LMIA Filing: 5 Things to Make Sure You Do

The Expiry of a Work Permit Can Lead to Frustration of Contract

Contact Achkar Law

If you are an employer with questions about hiring or otherwise relating to temporary foreign workers, our team of experienced workplace lawyers at Achkar Law can help.

Contact us by phone toll-free at 1 (800) 771-7882 or email us at [email protected], and we would be happy to assist.