New Open Work Permits for Vulnerable Workers – What Employers Need to Know

Introduction:

In general, temporary foreign workers in Canada on an employer-specific Work Permit are only authorized to work for the employer named on their Work Permit. In order for temporary foreign workers to change jobs, they need to obtain a new Work Permit, which could be challenging and time consuming. Given this, temporary foreign workers at risk of abuse in the workplace may be afraid to report the abuse to Immigration Canada (“IRCC”) and may endure situations of misconduct, abuse or other forms of employer retribution. To respond to these challenges, the Immigration and Refugee Protection Regulations (“IRPR”) was recently amended. As of June 4, 2019, section 207.1 of the IRPR gives IRCC the authority to issue Open Work Permits to temporary foreign workers holding an employer-specific Work Permit, who are experiencing abuse or who are at risk of experiencing abuse in the context of their employment. This bulletin will outline what employers need to know about the new Open Work Permits for vulnerable temporary foreign workers.

Open Work Permits for Vulnerable Workers:

In order for temporary foreign workers to apply for Open Work Permits pursuant to section 207.1 of the IRPR, they must meet the following three requirements:

1. the temporary foreign worker must be in Canada;
2. the temporary foreign worker must hold a valid employer-specific Work Permit or have submitted a Work Permit extension application for the same employer and is currently in Canada on “implied status”. This means a temporary foreign worker is precluded from applying if the individual has already lost status, but are still within the 90 day restoration period stipulated in section 182 of the IRPR; and
3. the temporary foreign worker is either experiencing abuse or is at risk of experiencing abuse in the context of the individual’s employment as defined in section 196.2 of the IRPR.

The temporary foreign worker will be responsible for providing evidence of the abuse the individual is experiencing or the broader circumstances in which the individual finds him or herself. Temporary foreign workers are further required to demonstrate how these broader circumstances cause them believe or fear they could be at risk of experiencing abuse as defined in section 196.2 of the IRPR. If there are reasonable grounds to believe the temporary foreign worker is experiencing abuse or is at risk of abuse in the context of the individual’s employment in Canada, then IRCC will issue an Open Work Permit valid for 12 months to the temporary foreign worker and the accompanying spouse (if applicable) in Canada.

Due to the fact that temporary foreign workers experiencing abuse or the risk of abuse may endure financial hardship, the Open Work Permit application is processed within five business days and the Work Permit processing fees are waived.

How is Abuse defined?

Abuse is defined in section 196.2 of the IRPR to include physical, sexual, psychological or financial abuse. Below are some common examples of the four types of abuse:

1. Physical Abuse
   • Description: physical abuse generally involves physical contact intended to cause feelings of intimidation, pain, injury, or other physical suffering or bodily harm.
   • Examples:
     • Hitting, beating and slapping a worker
     • Confining a worker
     • Forcing a worker to engage in drug or alcohol use against one’s will
2. Sexual Abuse
   • Description: sexual abuse generally encompasses any situation in which force or a threat is used to obtain participation in unwanted sexual activity and coercing a person to engage in sex against their will.
   • Examples:
     • Forcing or manipulating a worker into having sex or performing sexual acts
     • Using physical force, weapons or objects in non-consensual sexual acts
3. Psychological Abuse
   • Description: psychological abuse generally involves a pattern of coercive or controlling behaviour, iterated threats or both.
   • Example:
     • Insulting, intimidating, humiliating, harassing, threatening, name-calling, yelling at, blaming, shaming, ridiculing, disrespecting or criticizing a worker
4. Financial Abuse
   • Description: financial abuse generally involves one person who has control over the victim’s access to economic resources.
   • Examples:
     • Withholding money
     • Spending a worker’s money without consent.
     • Exploiting a worker’s economic resources

Employers should be mindful that abuse could also include the following scenarios:

1. The temporary foreign worker is repeatedly harassed by a co-worker in their workplace through unwanted physical or verbal behaviour that is offending and/or humiliating.
2. The temporary foreign worker may not be directly experiencing abuse, but may be in a situation where the temporary foreign worker’s co-workers are being abused by their employer and this puts the temporary foreign worker at risk of experiencing an abusive situation.

What Employers need to know about the Open Work Permits for Vulnerable Workers: 

In general, employers who hire temporary foreign workers are required to make reasonable efforts to ensure that the workplace provided to employees is free of abuse, which includes physical, sexual, psychological or financial abuse. Failure to do so may result in non-compliance with immigration laws. The consequences for non-compliant employers may include monetary penalties and/or being banned from hiring temporary foreign workers in the future.

Further, the IRCC Operational Guideline confirms IRCC currently does not contact the employer to verify the information submitted by the temporary foreign worker about the alleged abuse. The granting of an Open Work Permit will also not automatically lead to a finding that the employer is not in compliance with immigration laws. However, whenever a temporary foreign worker applies for an Open Work Permit pursuant to section 207.1 of the IRPR, IRCC will usually commence an immigration compliance investigation of the employer, which may include an on-site visit. The on-site visit is usually conducted without giving prior notice to the employer. Accordingly, employers should understand how abuse is defined under the IRPR and ensure they have adequate workplace policies to mitigate any actual or perceived abuse in the workplace.

In order to demonstrate compliance with the obligation to make reasonable efforts to ensure that the workplace provided to its employees is free of abuse, the employer should take the following actions (this is not a complete list):

1. have internal policies, procedures and mechanisms that address situations of abuse in the workplace, such as complaint policies and protocols, investigation and dispute resolution mechanisms, an employee representative or contact person, employee counselling, anonymous hotlines, etc.; and
2. have information on recent training provided to employees and supervisors on how to identify, recognize and address abuse in the workplace.

Conclusion:

This is a brief outline on what employers need to know about the new Open Work Permits for vulnerable temporary foreign workers. For further information, please do not hesitate to contact one of the lawyers in our Immigration Law Practice Group.