In the first edition of Ask A Lawyer, Harris Counsel Susan Martyn answers your immigration questions. Got a workplace law question of your own? Submit it here.
Question: Should employers hire foreign workers on a temporary basis only? What about permanent positions?
Answer: It is common for employers to hire foreign workers into permanent roles, particularly where the employer anticipates a long-term staffing need.
A foreign worker must maintain valid work authorization throughout their employment. Regardless of whether the position is temporary or permanent, an employer cannot continue to employ an individual who no longer has authorization to work in Canada. When hiring a foreign worker into a permanent position, employers should consider including provisions in the employment agreement or offer of employment stating that continued employment is contingent upon the employee maintaining valid work authorization throughout their employment. The agreement should also clarify that the employee is responsible for maintaining their work authorization, including identifying any available pathway to extend their status and applying for any required work permit extensions in a timely manner.
If the employer does not intend to provide immigration sponsorship or other immigration support, the employment contract should expressly state this to help manage expectations and reduce the risk of future disputes. Conversely, if the employer does intend to provide immigration support, the nature and scope of that support should be clearly documented.
Question: Would it be frowned upon to not hire a foreign worker if their work permit expires within a year of starting to ensure that there is not a gap in operations in the lose status?
Answer: Generally speaking, an employer has no legal obligation to hire a foreign national whose work authorization is expiring imminently. If an employer decides not to proceed with a candidate because their work permit is expected to expire within a relatively short period of time and there are legitimate operational concerns about potential interruptions to the workforce if the individual is unable to maintain work authorization, that decision would generally be based on the candidate’s work authorization rather than a protected ground under BC human rights legislation. That said, these situations are highly fact-specific. Employers should ensure that hiring decisions are based on legitimate business considerations and are applied consistently. It is recommended that employers seek advice from employment counsel before making decisions of this nature to ensure compliance with applicable employment and human rights laws.
Question: Our organization has a wage grid that applies to specific categories of workers. If there is an overall wage grid increase, are foreign workers eligible to receive this wage increase?
Answer: The answer to this question depends on the type of work permit that the foreign worker holds.
There are no restrictions on salary increases for foreign workers on open work permits, and salary increases are also generally permissible for LMIA-exempt work permit holders. However, this scenario is more problematic for foreign workers holding LMIA-based work permits. Under immigration law, LMIA-based work permit holders can only be granted salary increases that are equivalent to 2% per year, the annual rate of inflation and/or any changes to the median wage for the foreign worker’s occupation. If the salary increase resulting from the change to the employer’s wage grid exceeds these guidelines, the employer will be offside of immigration laws. If an organization wishes to provide an LMIA-based work permit holder with a wage increase that exceeds Service Canada’s guidelines, it is recommended that they have a conversation with their immigration counsel about their tolerance for risk and potential risk exposure if they do proceed with the salary increase.
Question: If an employer has supported an LMIA-exempt work permit (e.g., a Francophone Mobility work permit) and that foreign worker is subsequently laid off, what does the Employer need to be aware of?
Answer: From an immigration perspective, there are no restrictions on an employer’s ability to layoff or terminate the employment of a foreign worker.
For foreign workers on LMIA-exempt work permits, there is no obligation that an employer notify Immigration, Refugees and Citizenship Canada about the foreign worker’s layoff or termination. However, if the foreign worker holds an LMIA-based work permit, the employer is obliged to notify Service Canada about the change in the foreign worker’s employment circumstances. From a practical standpoint, a layoff or termination will be noted in the foreign worker’s Record of Employment, which will be visible to Service Canada if the employer applies for further LMIAs in the future. To the extent that the employer is seeking an LMIA for the same or a similar role that the laid off / terminated foreign worker previously held, the LMIA application could be refused.
Question: If an employer does not have any language in their employment contracts about the foreign worker’s responsibility to maintain valid work authorization and/or does not expressly limit the term of a foreign worker’s employment, is the employer responsible or liable for reapplying for an Labour Market Impact Assessment (LMIA) when a foreign worker’s initial work permit expires?
Answer: Under immigration law, an employer has no obligation to support a foreign worker with a new Labour Market Impact Assessment (LMIA) or any other employer-specific work permit application. Sponsoring a foreign worker is generally seen as a voluntary business decision and this remains true even where the employment agreement does not expressly require the employee to maintain valid work authorization or limit the term of employment to the validity of the work permit.
However, this scenario may have employment law consequences. Depending on the circumstances, a foreign worker who is terminated because their work permit has expired may have grounds to assert a wrongful dismissal claim, particularly where the employer has previously represented that it would provide ongoing immigration support or where the employee has a viable pathway to extend their work authorization.
Before making any termination decision, employers should confirm whether the employee has applied for or is eligible to apply for an extension of their work authorization (including whether they may have maintained status). Given the fact-specific nature of these situations, employers should seek legal advice before proceeding with a termination to ensure compliance with both employment and immigration law.
