On November 8, 2018, British Columbia's government passed Bill 48, the Temporary Foreign Worker Protection Act (the "Act"). While the measures included in the Act will not come into effect until the government issues additional regulations next year, employers that rely on temporary foreign workers may want to familiarize themselves with their forthcoming legal responsibilities.
The Act establishes a registry for recruiters and employers of temporary foreign workers. Enrollment requires that foreign worker recruiters be individually licensed. Similarly, employers of temporary foreign workers will be required to be certified before recruiting the services of a temporary foreign worker. The exact process by which recruiters and employers will apply and be licensed or certified has yet to be defined.
The Act is designed to provide oversight of the actions of recruiters and employers of temporary foreign workers. The Act gives the Director of Employment Standards (the "Director") the power to make inquiries into and conduct investigations of the character, financial history and competence of applicants for registration.
The Director may refuse to register individual recruiters or employers based on a determination that the applicant is not acting or will not act with integrity, honesty or in the public interest, or otherwise in accordance with the law. In assessing the actions and past conduct of an employer, the Director is empowered to assess whether the employer has failed to comply with relevant employment legislation, such as the Employment Standards Act and the Workers Compensation Act, or the terms of its federal application for retaining temporary foreign workers.
Certificates issued to employers under the Act will be valid for up to 3 years, at which point the employer must reapply. During the course of certification, the Director retains the power to suspend, cancel, or amend the terms of the certificate.
In addition to establishing a licencing and registration scheme, the Act attempts to regulate the conduct of recruiters and employees. Section 20 prohibits recruiters and employers from
- producing or distributing false or misleading information relating to recruitment services, immigration, immigration services, employment, housing for foreign workers or the laws of British Columbia or Canada;
- taking possession of or retaining a foreign national's passport or other official documents;
- misrepresenting employment opportunities, including respecting a position, duties, length of employment, wages and benefits or other terms of employment;
- threatening deportation or other action for which there is no lawful cause; and,
- taking action against or threatening to take action against a person for participating in an investigation or proceeding by any government or law enforcement agency or for making a complaint or inquiry to any government or law enforcement agency.
The Act will also prohibit recruiters and employers from directly or indirectly charging temporary foreign workers fees or expenses in connection with recruitment services.
The Act empowers the Director to make and enforce a variety of orders in a manner similar to that provided in the Employment Standards Act. Orders may include directions that an individual comply with the Act, compensate a person for a fee charged in contravention of the Act, or pay a monetary penalty in accordance with the (yet to be released) regulations. The Director is permitted to enforce orders through the courts and to order the seizure of assets of individuals or businesses to satisfy any outstanding amounts.
The Act also gives the Director the power to publish identifying information about persons who have contravened the Act.
Employers that employ temporary foreign workers may wish to speak with legal counsel about the potential impact the Act will have on the recruitment of such workers.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
