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Working within the law

By Janet L. Bomza | March 30, 2015
Working within the law
Janet L. Bomza

If your organization is like many others across Canada, it may rely heavily on foreign workers to meet its labour market needs. If not, it probably soon will. That’s due to an acute and growing shortage of highly skilled labour in key industries – brought on by economic globalization, which is increasing the competition for talent – and changing demographics. The baby boomer generation is shifting into retirement en masse, leaving skills gaps in numerous sectors.

Job openings in Ontario alone could be significant over the next decade, while the demand for skilled workers will only continue to grow. Job openings in Ontario could total 2.4 million over the next 10 years, projections indicate. In a 2012 Conference Board of Canada survey of 1,500 Ontario employers, about 75 per cent of respondents said the skills required to operate and grow their businesses would become more complex in the coming decade. The Conference Board estimates that this productivity gap costs the provincial economy up to $24.3-billion in gross domestic product each year. Immigration is the key to mitigating these projected labour market shortfalls, which explains why many employers have come to rely on temporary foreign workers not only to fill labour gaps, but also to help with skills and career development for newcomers to the Canadian job market. At the same time, organizations are grappling with the complexities of immigration law as governments here and around the world strengthen foreign-worker compliance requirements due to factors ranging from economic weakness to terrorism. 

In Canada, there’s been a major focus in the past two years on reforming national immigration policies, including the Economic Class (for those pursuing permanent residency) and Temporary Foreign Worker programs. These reforms were intended to protect the local labour market and ensure that Canadians and permanent residents have first opportunity to access new jobs. But for Canadian businesses, they’ve resulted in stricter rules around sourcing and relocating talent that can have a huge impact on their operations at home and around the world. Adding to the burden are a strengthened collection of enforcement and punitive measures for companies that fail to comply with the strict requirements and parameters associated with the employment of a foreign worker. This shift in focus – to making employers accountable for ensuring immigration compliance –has put a brighter spotlight on companies.

As such, there is a great urgency for employers to have proper policies for hiring immigrants to address immediate and long-term labour market needs. Business leaders must understand that thorough risk control frameworks – which take into account Canadian and local foreign compliance requirements – can deliver significant strategic and operational value, helping avoid costly penalties and driving bottom-line growth.

With that in mind, here are five tactics to help you leverage global talent and stay on the right side of the law.

1. Identify risk exposures

Many organizations are simply unaware of the non-compliance risks they face when hiring foreign workers or sending staff overseas. A critical first step is to analyze the immigration policies you have in place (or lack thereof, as the case may be) to ensure compliance with foreign-worker legislation in Canada and in other countries of operations. Decentralizations, where various divisions of a company have their own immigration policies and programs or use multiple service providers to bring workers into Canada or send employees to work abroad, increase exposure to non-compliance risk. A better approach: train one person or a team to manage the entire immigration program, and be sure that person or team is fully versed in all necessary compliance requirements and obligations. 

2. Understand and comply with regulations

Several recent changes to the rules around the hiring of foreign workers have dramatically altered the compliance landscape. As of 2014, for example, companies must keep all documentation pertaining to the employment and recruitment of foreign workers for six years, a big jump from the previous two-year limit. Employment and Social Development Canada (ESDC), Canada Border Services Agency (CBSA) and Citizenship and Immigration Canada (CIC) now have the authority to conduct warrantless on-site visits and interview any temporary foreign worker (or their colleagues), then request documentation to verify compliance. Employers who hire through the Temporary Foreign Worker Program are also being asked to sign an attestation declaring that their company follows relevant labour and immigration laws.

It’s also important that organizations employ foreign workers in accordance with their permitted work function (including the region where they’re allowed to work) and maintain extensive records pertaining to the recruitment and employment of foreign nationals in Canada. That includes documentation such as payroll records, time sheets and responses to domestic recruitment efforts. 

3. Develop customized policies that make sense

A one-size-fits-all approach to the law never works. Design immigration policies that not only comply with all relevant provincial and federal legislation but also address your organization’s unique needs.

4. Hold regular compliance reviews

Just drafting policies won’t shield you from non-compliance incidents. Regular internal reviews help ensure that your organization follows procedure when it employs a foreign worker or dispatches a staffer to work abroad. Don’t think reviews are worth the time and effort? New non-compliance fines can top $100,000, depending on the severity of the offence, and unauthorized individuals such as human resources professionals who prepare immigration forms for foreign nationals can be fined up to $50,000 or face imprisonment for up to two years – or both. That’s in addition to the company being placed on a publicly available federal blacklist and barred from hiring foreign workers for as long as two years. 

5. Help foreign workers become Canadians

Consider helping your best foreign workers to acquire permanent residency or even citizenship status as quickly as possible. Doing this will eliminate compliance and tracking obligations – and perhaps most important, it will boost the odds of retaining the top talent your company might need to get results.

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