New Foreign Workers ‘Blacklist’ Sparks Controversy

Embassy Magazine – September 1, 2010
Anca Gurzu

While new rules to shield foreign workers from exploitation are welcome, immigration lawyers worry that a plan to publicly “blacklist” allegedly dishonest employers lacks details and could lead to lawsuits. There are also concerns that introducing an expiration date on working permits will unfairly impact low-skilled workers.

Immigration Minister Jason Kenney announced the new measures two weeks ago, and they will come into effect in April. The changes were prompted by increasing concerns and complaints over the exploitation of foreign workers, especially live-in caregivers. There were no previous measures in the regulations that could hold employers accountable for their treatment of foreign employees. Under the new rules, which were published in the Canada Gazette, the government’s official publication, employers who are “found to have provided wages, working conditions or an occupation that was not substantially the same as what was offered” in the original job offer will be banned from hiring any foreign workers for two years. However, the new regulations also give employers an opportunity to present to officials “a reasonable justification” for the differences in wages, working conditions or occupation of the worker. The justifications may include changes in provincial or federal laws or collective agreements, “an error in interpretation made in good faith,”” a dramatic change in economic conditions,” or “an unintentional accounting or administrative error.”

Mendel Green, senior partner with Green and Spiegel LLP and also the founding chairman of the Canadian Bar Association’s immigration section, said the regulations do not include sufficient details about how companies can justify their conduct, leaving a lot of grey areas.

Terms such as “a dramatic change in economic conditions” and “good faith” are highly interpretable, he said. “Workers need protection. Everyone supports that,” said Mr. Green, whose law firm represents top Canadian companies. “[The government] says it will treat everyone fairly, but there is no step-by-step process. If there are no lawful steps, the final decision is totally left to the discretion of [the reviewing officer].”

Public ‘blacklist’ highly challengeable

Besides the two-year ban, employers who are found to have breached their commitment to foreign workers will also be placed on a list that will be publicly available on the Citizenship and Immigration Canada website.

Lawyers have quickly termed this a “blacklist,” which they say could easily lead to legal actions against the government. This is the first time the department has implemented such a list.

Max Berger, a Toronto-based immigration lawyer, said the two-year ban is appropriate, as it would target the “bad apples” among employers, who “should get a slap on the wrist.” But he felt the blacklist goes too far. “Immigration is not in the punishment business,” Mr. Berger said. “Keeping the blacklist means publicly flogging the emplyer. Inevitably there’s going to be lawsuits.” Mr. Berger pointed out that employers can be put on the list without a court order. Dissatisfied employers will likely seek injunctions to get their names off and may also seek compensation from Citizenship and Immigration Canada for reputation-related damages, he explained.

In fact, lawyers worry the public “blacklist” is more likely to affect a company’s reputation than shield foreign workers from associating themselves with those companies.

A high proportion of foreign workers, especially the low-skilled ones, might not speak English or French, might not have access to a computer and might not even know the list exists, Mr. Green said. This may lead to people wasting their time seeking employment with a blacklisted company, Mr. Berger added. Corporate immigration lawyer Jonathan Leebosh said the new measures will be a challenge for both the government and companies. The new rules raise the bar for businesses dealing with foreign workers, he said. But Mr. Leebosh also expressed his doubts over the “blacklist.”

“I don’t think it adds anything to what the governments wants to achieve other than to embarrass employers and I don’t think that’s the best way to go about it,” he said. However, he also pointed out that although the current wording of the regulations leaves room for interpretation, government officials are still working on the operational manual that will guide officers in their decisions, so more details might emerge later.

The second major change in the regulations introduces a four-year limit on work permits, followed by another period of four years during which foreign employees will not be allowed to work in Canada. The reason behind the cap, according to the Canada Gazette, is that labour markets are dynamic and labour needs change.

Experts say the four-year limit might pressure high-skilled foreign workers to apply for permanent residency in order to stay beyond the permit’s visit, while banning deserving low-skilled workers from the country. High-skilled workers can apply for permanent residency after two years of work in Canada, either under the Federal Skilled Worker program or under the Canadian Experience Class (used especially by recent foreign graduates who decide to settle in Canada). Most low-skilled workers do not qualify for permanent residency, but there was no hard cap before on their work permit. The number of foreign workers has more than doubled in Canada from 2005 to 2009, according to Statistics Canada figures. Western provinces have seen the most drastic spikes, with Alberta moving from about 15,800 workers in 2005 to almost 66,000 by 2009.

Mr. Green said it is not uncommon for international companies to move their executives throughout the world, without them ever wishing to settle in any specific country. “How do you tell the CEO of the Four Seasons hotel or the Toronto General Hospital to get lost?” he asked. “It’s not a question of what [the government] wants, but what the skilled worker wishes. This doesn’t make sense from a business point of view.”

Regarding low-skilled workers, Mr. Berger said the government probably doesn’t want Canada to gain a reputation “as a country with an underclass of guest worker.”” It might not be the intention, but the effect of the new rules is that low-skilled workers are the ones that are going to feel the brunt of this regulation,” he said Foreign workers who arrive in Canada for employment under international agreements are exempt from these rules.