Employing Forign Nationals in Ontario

*Written by Zura Nakiwoga, Articling Student at Lee Workplace Law

Understanding how employment law governs foreign workers is essential for both employees and employers in Canada. This guide provides an overview of some key employment considerations when dealing with foreign workers.

1. Employment Rights and Obligations for Foreign Nationals

In Ontario, the Employment Standards Act (ESA) sets the minimum standards for workplaces. It includes provisions on minimum wage, hours of work, overtime pay, vacation time, and various leaves of absence. These protections apply to most employees, including foreign nationals, ensuring fair treatment and safe working conditions.

Additionally, the Employment Protection for Foreign Nationals Act, 2009 (EPFNA) protects foreign nationals working under immigration or foreign temporary employee programs by prohibiting recruitment fees, ensuring contracts are honored, and providing mechanisms to report exploitation without fear of retaliation.

2. Types of Work Permits

Foreign nationals can work in Canada on various different work permits, as follows.

a. Study Permits and Work

International students on a study permit can work off-campus for up to 20 hours per week during academic sessions and full-time during scheduled breaks. It's important to adhere to these limits to avoid losing their status, risking future approvals for study or work permits, and facing the possibility of being required to leave the country.

b. Open Work Permits

Open work permits allow individuals to work for any employer in Canada. They are commonly issued to spouses of skilled workers, international graduates, and vulnerable workers needing protection from workplace abuse.

c. Closed Work Permits

Closed work permits are employer-specific, meaning the worker can only work for the designated employer. If terminated, the worker must find a new employer who can sponsor their visa or switch to an open work permit to remain in Canada.

3. Working as a Visitor

Generally, visitors in Canada cannot work without a work permit. However, there are pathways that allow visitors to apply for a work permit without leaving the country, such as converting a visitor visa to a work permit under specific circumstances.

4. Converting Study Permits to Post-Graduate Work Permits

Graduates from eligible Canadian institutions can apply for a Post-Graduate Work Permit (PGWP), which allows them to gain Canadian work experience. The duration of the PGWP corresponds to the length of the study program, up to a maximum of three years.

5. Employer Obligations and Requirements

When hiring foreign workers, employers in Canada must comply with the ESA and immigration laws. This includes providing fair wages, maintaining safe working conditions, and avoiding illegal deductions from wages. Employers must also ensure compliance with health and safety standards, such as the Occupational Health and Safety Act in Ontario.

a. Health and Safety

Employers are required to provide a safe work environment for all workers, including foreign workers, with adequate training and necessary protective equipment. Workers have the right to refuse unsafe work without fear of retaliation.

b.Workplace Free of Abuse

Employers must ensure the workplace is free from physical, sexual, psychological, and financial abuse. This includes preventing actions such as threats, forced unsafe work, and illegal withholding of personal documents like passports.

c.Health Care Access

Employers must provide private health insurance covering emergency medical care until the foreign worker is eligible for provincial health insurance. Workers have the right to access healthcare services independently. This applies to all foreign workers regardless of visa status.

d.Housing

For certain jobs, employers must provide suitable and affordable housing that meets safety and health standards.

6. Foreign Work Experience

The Working for Workers Four Act will prohibit employers from including in any publicly advertised job posting or associated application forms any requirements related to Canadian experience. Once this change comes into force, employers will not be allowed to include Canadian work experience as a requirement in job postings, thereby making it easier for foreign workers to apply for jobs based on their skills and experience obtained outside of Canada.

7. Changing Employment or Employer

Foreign workers on closed work permits must obtain a new work permit to change employers. This involves applying for a new work permit, often requiring a Labour Market Impact Assessment (LMIA) from the new employer. Open work permit holders can change employers without needing a new permit.

8. Termination of Employment

If an employer is terminating a foreign worker without cause, they typically need to comply with the usual rules on termination. Employers will need to comply with the ESA rules on notice periods, pay in lieu of notice, and severance pay. Foreign workers may also have termination entitlements under common law.

However, if the foreign worker loses the ability to lawfully work in Canada (e.g., due to permit expiration), the employer may be able to claim frustration of contract, ending the employment without usual termination obligations. Legal counsel should be consulted in such situations.

9. Key Takeaways

For Employees:

• Understand your rights under the ESA, including minimum wage, working hours, entitlements to leaves, and termination rules.
• Stay informed about your work permit conditions and changes in immigration regulations.
• Report any violations to the Ministry of Labour or relevant authorities.

For Employers:

• Ensure compliance with ESA and immigration regulations.
• Provide fair working conditions and accurate compensation.
• Adhere to legal responsibilities when employing foreign nationals and comply with specific requirements for different work permits.

Conclusion

Navigating employment laws as a foreign worker or employer in Canada involves understanding both provincial laws, like the ESA, and federal immigration regulations. It is crucial for both parties to stay informed to ensure compliance and protect their rights and responsibilities. Consulting with employment and immigration professionals is recommended for specific issues to ensure proper guidance and adherence to current laws.