Canadian HR Reporter

CANADIAN HR REPORTER CANADIAN HR REPORTER February 24, 2014 FEATURES/EMPLOYMENT LAW 17 TFWP < pg. 5 LMOs can be suspended, revoked or refused LMOs can be suspended, revoked or refused In terms of documents to demonstrate compliance, an em- ployer may be asked to produce: •the business licence or permit •T2 Schedule 125 Income State- ment Information and T2 Sched- ule 100 Balance Sheet Informa- tion •commercial lease agreements, business permits, etcetera •provincial/territorial employer and recruiter registration cer- tifi cate/licence •recruitment information •anti-abuse policies/codes of conduct/compliance policies/ whistle-blower protection poli- cies/anti-harassment policies •training policies and materials •payroll records •time sheets •pension and benefi ts enrolment documents •job descriptions •copies of foreign workers' work permits •documentation in relation to job creation, job retention, training, development or transfer of skills and knowledge •registration with provincial/ter- ritorial workplace safety/work- ers' compensation clearance letter. Employer opportunity to respond: Employers will be of- fered an opportunity during the compliance review to provide justifi cations for initial fi ndings of non-compliance and to take corrective action. e regulatory justifi cations for non-compliance are, however, very limited. Non-compliance: Employers that are found to be non-compli- ant or refuse to take corrective ac- tion to achieve compliance could be subject to: •a two-year ban from the program and be listed as non-compliant on the CIC website •refusals of any pending applica- tions •revocation of previously issued approvals. Ministerial instructions Under the recent ministerial in- structions, Service Canada now has the authority to suspend, re- voke or refuse to process an LMO based on public policy consider- ations. CIC has the authority to revoke a work permit. Ministerial instructions are not regulations but have the same force and eff ect. ey are special powers provided to the minister to implement key changes quick- ly and are not subject to public consultation. Ministerial instructions in relation to LMOs Suspension: An LMO suspension is the temporary removal of the force or eff ect of an LMO during its period of validity, and prior to the corresponding work permit being issued. A suspended LMO may not be used to obtain a work permit from CIC. An LMO may be suspend- ed when any of the following happens: •New information becomes avail- able after an LMO is provided which, if known at the time of the assessment, would have led to a diff erent opinion. •There are reasonable grounds to suspect false, misleading or inaccurate information was pro- vided. • ere are reasonable grounds to suspect the employer is not com- plying with the conditions set out in the Immigration and Refugee Protection Regulations (S. 209.3 or 209.4) in respect of that LMO or work permit or any other work permit. • e employer's name has been added to the public list of in- eligible employers as a result of non-compliance. This change permits the re- evaluation of an LMO based on labour market information ob- tained after the LMO was issued which, if known at the time of the opinion, would have resulted in a negative decision. This information could very well include labour market infor- mation, studies and representa- tions from stakeholders having expertise in the sector or occu- pation in question. is change introduces an element of uncer- tainty for employers and tempo- rary foreign workers. Where an LMO is suspended but a subsequent decision is made not to revoke it, Service Canada will re-issue another LMO at no additional cost to the employer if the validity period on the original LMO has expired. Revocation: Revocation is the permanent cancellation of the ef- fect or force of an LMO. A revo- cation may occur before or after a corresponding work permit has been issued. When a revocation occurs, the LMO may not be used to obtain a work permit from CIC. If the LMO is revoked after the work permit is issued, CIC may also re- voke the work permit. An LMO may be revoked when: •new information becomes avail- able after the LMO is issued that indicates the employment of the foreign worker is having, or will have, a signifi cant negative eff ect on the labour market in Canada •false, misleading or inaccurate information was provided in the request for an LMO •the employer's name has been added to the public list of in- eligible employers as a result of non-compliance. e power to revoke an LMO creates uncertainty for employers and for foreign workers, and it's not clear to what extent a duty of fairness will apply to decisions to revoke. Refusal to process: Service Canada is now authorized to re- fuse to process LMOs for a given sector, region or occupational group, if either of the following occurs: •Information indicates the em- ployment of a foreign national in a given sector, region or occu- pational group may or will have a signifi cant negative impact on the labour market. • e LMO request relates to an application for a work permit, the processing of which would be refused by CIC (under section 87.3 of the IRPA). Information on any refusal to process sectors, regions or occu- pational groups will be provided on the TFWP website. e implications of this change are considerable, as Service Can- ada can now refuse to process ap- plications based on its own labour market analysis, notwithstanding the fact the employer has tested the market by way of thorough recruitment. Employer opportunity to re- spond: In all cases of a suspension or revocation of an LMO, the em- ployer will be notifi ed and given an opportunity to respond or pro- vide new, relevant information. Ministerial instructions in relation to work permits CIC now has the power to revoke a work permit in any of the follow- ing circumstances: •Service Canada revokes the LMO on which the work permit was based. •New information becomes avail- able indicating the employment of the foreign worker is having, or will have, a signifi cantly great- er negative eff ect than benefi t in relation to the development of a strong Canadian economy. •False, misleading or inaccurate information was provided in the request for the work permit. • e employer's name has been added to the public list of in- eligible employers as a result of non-compliance. • e work permit was issued to the foreign national on the basis of her relationship to another foreign national whose work permit has been, or is being, re- voked. It is unclear at this time whether the revocation of a work permit will result in the worker being out of status in Canada. Tips for employers It is crucial employers be proac- tive in implementing best practic- es for ensuring and demonstrating compliance, such as: 1. Implementing an offi cial cor- porate immigration policy, in- cluding comprehensive internal guidelines, expectations and processes, and confi rming that the use of temporary foreign workers is short-term and only in cases of demonstrable skill shortages. 2. Implementing detailed training plans to document knowledge and skills transfers by temporary foreign workers to the Canadian work force. 3. Establishing an internal immi- gration compliance offi cer who is accountable for: •maintaining recruitment proce- dures •maintaining records and ensur- ing compliance in relation to changes to employment terms including wages (such as reas- sessment of prevailing wage on annual basis), promotions and variation of working conditions •verifying supporting company documentation •developing document retention practices •developing third party/vendor management policies. 4. Establishing corporate proto- cols to respond to requests for inspections and compliance re- views. 5. Creating foreign worker veri- fi cation fi les containing key in- formation, document retention protocols and centralized stor- age and retrieval processes, in order to respond to compliance reviews and inspections in a timely manner. 6. Developing and circulating in- ternal communication on anti- abuse worker guidelines and policies, and on whistleblower processes to encourage credible reports from employees relating to complaints of abuse and the prompt and fair resolution of any complaint. e government of Canada is determined to ensure the tem- porary foreign worker program facilitates the temporary entry of workers to meet immediate skills shortages, and not the creation of a permanent workforce of tempo- rary workers. e changes implemented to meet this objective present chal- lenges for Canadian businesses that employ global expertise di- rectly or through third-party ser- vice providers. It is crucial employers react quickly to implement compliance measures to protect their ability to continue to use the TFWP. Howard Greenberg is a partner and global immigration leader at KPMG Law in Toronto. He can be reached at (416) 943-0288 ext. 224, hgreenberg@ kpmglaw.ca or visit www.kpmglaw.ca for more information. TERMINATIONS Tempering high-risk terminations Reducing potential for violence, sabotage when fi ring workers with red fl ags By Martin Jaekel and Linda Bilotta I n September 2010, Yvonne Hiller, a line worker at Kraft Foods in Philadelphia who had been on the job for 15 years, was suspended for bad behav- ior. She was escorted out of the building by security following a heated argument between co-workers. Hiller, who later testified she thought she had been fi red, re- turned to the building shortly af- ter the incident and opened fi re, killing two workers and injuring a third. Have a look at the sidebar on page 20 — these were just some of the comments made during Hiller's trial and found in news articles. Many of the points repre- sent common red fl ags, stressing the importance of a well-estab- lished in-house assessment plan, outreach program, termination process and research prior to sus- pension or dismissal. e knowledge that Hiller pos- sesed a gun could have changed the outcome of this event or, at the very least, played a signifi cant part in its handling. Surveillance or the presence of law enforcement might have also been factors that could have pre- vented this tragedy. Seventeen per cent of self-re- ported incidents of violent victim- ization occurred in the workplace, according to Statistics Canada's 2005 General Social Survey — Victimization. These incidents included sexual assault, robbery and physical assaults and added up to 356,000 violent workplace incidents in 2004. In situations with a high-risk individual, an employer often prefers to have the termination and exit interview face-to-face, conducted by an experienced, ex- ternal professional. e primary purpose in retaining an outside professional is to reduce confl ict — but it can also yield benefi cial results for both the terminated employee and the employer. Engaging a professional to conduct the termination and exit interview may also assist in gathering feedback on any prob- lems within the organization and provide a mechanism to de- fuse any unresolved issues that might escalate to violence. is is CONSIDER > pg. 20 Engaging a professional to conduct the termination and exit interview may help to defuse any unresolved issues that might escalate to violence.

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