Employment and Labour Considerations in Business Transactions – Part II: Typical Labour and Employment Issues
by:
Earl Phillips
Those who plan, structure and execute business transactions, and those with HR and Labour Relations responsibilities in the organization, must identify and understand the employment and labour issues, take appropriate steps to ensure the objectives of the transaction are met, and avoid unintended consequences. In our previous issue of the LEQ, we looked at the importance of gaining an early and complete understanding of the proposed transaction. Here in Part II, we provide a summary guide to the labour and employment issues that typically arise.
1) Terms of employment
You need full information about all terms and conditions of employment: the statutory and common law requirements, written terms in employment contracts, collective agreements, and policies.
2) Collective bargaining obligations
Review all collective agreements for provisions relevant to the transaction. Some collective agreements even have obligations that are triggered by a sale of shares.
Certifications granted by labour relations boards and scope clauses of collective agreements have to be reviewed to understand the full scope of collective bargaining obligations that may affect the transaction.
Review the expiry date of collective agreements and consider if the bargaining cycle could affect, or may be affected by, the proposed transaction.
Advance notice to unions of a proposed transaction, and negotiation of an adjustment plan, may be required by statute or a collective agreement. This can affect the timing of a transaction and other disclosure obligations a party may have. Even without such an obligation, the parties should consider how and when to inform the union of the proposed transaction.
3) Union and non-union successorship
Most asset purchase transactions will trigger successorship under labour law, i.e., the buyer of the business will become bound to the certifications, collective agreements and ongoing labour disputes of the seller. That requires a full review of the current state of labour relations, collective bargaining, and grievances.
Less well-known is the concept of non-union successorship. Employment standards legislation generally deems employment to be continuous when a business is sold and the employees continue in employment with the buyer. In such cases, the seller will not have termination obligations, but the buyer takes the employees with accrued seniority and other rights. Each jurisdiction is different, so the applicable statute must be considered.
The common law also has a form of successorship by presuming the buyer hires employees from the seller with the employees’ accrued length of service for things like benefits, vacation and future termination.
4) Offers of employment
When and how offers of employment are made by a purchaser will depend on many factors, including applicable legislation, the state of the transaction negotiations, restrictions on disclosure, getting set up to take over the employees, and the desired human resources outcome. To whom offers are to be made, and on what terms, is governed by the terms of the deal. A purchaser has to be sure it can meet an obligation to offer employment on “the same” or “substantially similar terms” if required by the agreement.
5) Terminations
The full cost of terminations, and who will bear that cost, must be considered. The liability will flow from specific employment contract provisions, the common law and statute.
Common law obligations for reasonable notice of termination will require gathering and reviewing information about the affected employees; in particular, their age, length of service, character of employment, and availability of suitable alternative employment.
All employment standards statutes in Canada provide for a minimum amount of notice or compensation in lieu of notice to be provided. Some statutes also require severance pay.
Employment standards statutes also have provisions for the termination of large numbers of employees in a short period of time. The numerical and timing triggers for group termination provisions, and how they might apply to a group of related entities, have to be reviewed in each jurisdiction.
6) Employees not actively at work
There may be a large number of employees who are not actively at work when the transaction is closed. Employees may be away from work for any number of reasons – statutory leaves such as maternity or parental leave, disability, leaves of absence – and with varying degrees of certainty about their return to work.
This can be a problem for both the buyer and seller: the seller wants all employees of the business to be hired by the buyer; the buyer does not want liability for employees who may not return to work any time soon. Meanwhile, both buyer and seller have to recognize the rights and interests of the employees. An employee on leave from work may be protected by human rights legislation, and benefits could be adversely affected by the transaction.
7) Employment/labour litigation
A comprehensive review of all current, pending and threatened employment and labour claims is important. It will help to identify prospective liability and can help to guide negotiations on price and price adjustments, holdbacks, indemnities, and the handling of claims after closing. It will also help to provide a general sense of the human resource and labour relations climate in the organization and identify corrective actions that are necessary.
8) Pensions and benefits
An early understanding of the pension and benefits plans that each party has will assist negotiations on issues such as the buyer’s obligation to offer comparable employment to the seller’s employees. Before committing to offering employment on the “same” or “substantially similar” terms of employment, it is necessary to understand the details of the pension and benefits plans and determine what can be offered and how soon.
Pension statutes and related income tax laws, at the very least, may impose registration requirements with strict time limits.
Some time, effort and expense will be required to ensure a defined benefit pension plan is fully and properly funded.
9) Workers’ compensation
Provincial and Territorial statutes governing compensation for workplace injury and illness will apply to almost all employees in Canada. These mandatory insurance schemes use different methodologies, but generally assess employers based on the nature of the industry and the employer’s safety record.
A transaction may involve combining or separating businesses with different assessment rates in the same province or territory. An early review of the assessment rates and safety records of the employers involved is required to see if there is an opportunity for a lower assessment rate, or a risk of a higher assessment rate.
10) Employment Insurance, Canada Pension Plan
An often overlooked but sometimes significant issue is the effect of a transaction on an employer’s Employment Insurance and Canada Pension Plan contributions. Such contributions are subject to a yearly maximum and many employers reach that maximum long before the end of the year. However, depending on the nature of the transaction, a new employer may have to restart contributions. Early identification of the issue may allow for changes to the timing or structure of the transaction to minimize or eliminate the extra liability.
11. Immigration
If the transaction will involve hiring an employee on a work permit, application must be made to vary the work permit to show the name of the new employer. In some cases, a labour market opinion will be required. Any offer of employment should be conditional on obtaining the new work permit.
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The Accessibility for Ontarians with Disabilities Act, 2005: Preparing Your Organization for Compliance
by:
Daniel Pugen
Within less than one year, most organizations will have to comply with the Customer Service Standard (CSS) of the Accessibility for Ontarians with Disabilities Act (AODA). The CSS applies to designated public sector organizations as of January 1, 2011. Commencing January 1, 2012, it will also apply to every other organization that provides goods or services to members of the public or other third parties and that employs at least one employee in Ontario. Simply put, most private sector employers must comply by January 1, 2012.
As noted previously in the LEQ, the AODA is legislation that seeks to gradually improve accessibility for persons living with disabilities through the implementation of five "Accessibility Standards" — Built Environment, Employment, Transportation, Information and Communication, and Customer Service. Under the Ontario Human Rights Code, organizations already have a "duty to accommodate" employees with disabilities and in the provision of goods and services to third parties. However, the AODA’s Accessibility Standards will provide for more specific obligations where organizations will have to take a more proactive role in meeting the accommodation needs of, for example, customers and employees with disabilities.
Currently, only the CSS has become law. Under it, organizations in Ontario will have obligations to:
- establish policies, practices and procedures governing the provision of goods or services to persons with disabilities, including provisions for assistive devices;
- ensure that service animals and support persons are not denied entry to an organization’s facility if the public and/or third parties have access to the premises;
- provide notice of temporary disruptions in services usually used by those with disabilities;
- ensure that persons involved with providing services to members of the public or other third parties receive training on: (i) how to interact and communicate with persons with various types of disabilities; (ii) how to use equipment or devices available on the provider’s premises that may help a person with a disability; and (iii) what to do if a person with a particular type of disability is having difficulty accessing the provider’s goods or services;
- provide ongoing training in connection with any changes to the organization’s policies, practices and procedures; and
- establish a process for receiving and responding to feedback (including complaints) about the manner in which an organization provides goods or services to those with disabilities.
Moreover, for all public sector organizations, as well as other organizations with at least 20 employees, there are obligations to:
- prepare documents outlining its policies, practices and procedures;
- file accessibility reports with the Ministry; and
- provide copies of documents to any person in a format that takes into account the individual’s specific disability.
In addition to considering the CSS, organizations should start turning their attention to the proposed Employment Standard. On May 31, 2010, the Ontario government announced the development of an Integrated Accessibility Regulation (the Proposed Regulation), which includes and integrates into one streamlined regulation the Employment Standard, the Information and Communications Standard, and the Transportation Standard.
The Proposed Regulation is in draft form and includes a proposed timeline for compliance, a proposed framework for monetary penalties, and a proposed designation of the Licence Appeal Tribunal as the body to hear appeals relating to the AODA. Currently, timelines for compliance range from 2011 to 2025.
The Employment Standard set out in Part "C" of the Proposed Regulation will likely have the largest impact on employers’ obligations in terms of both administrative resources and costs. The goal of this standard is to help employers create equal employment opportunities for people with disabilities by removing barriers to employment.
Private sector employers should anticipate implementing compliance gradually over the coming decade, with the bulk of requirements becoming due in 2016 for employers with more than 50 employees, and 2017 for those who employ less than 50 employees.
The proposed Employment Standard will apply to the recruiting, hiring and retaining of paid employees, including full-time, part-time, or apprenticeships. However, it does not apply to unpaid employees, volunteers, or persons on co-op or high school work experience placements. Based on the current draft, the Employment Standard will obligate organizations to:
- Provide training on the requirements of the accessibility standards to employees and, for employers with 50+ employees, create a document describing the training policies.
- Establish, maintain and implement policies governing the implementation of the accessibility standards. The policies must include a description of how the organization will meet the standards, as well as a statement of commitment for meeting the needs of persons with disabilities. As noted above, employers with 50+ employees will have to prepare a separate document describing the policy. This must be available upon request, and in a format that meets each person’s needs.
- Accommodate persons with disabilities in the recruitment process by, for example, notifying applicants that accommodations will be provided to enable their participation in the recruitment process, and also notifying selected applicants that any assessment and selection materials and processes used will be available in an accessible format upon request.
- Develop individual accommodation plans for employees with disabilities, upon request. The plans must assess and accommodate employees on an individual basis, identify the accommodation to be provided, include timelines for the provision of accommodations, and include individualized workplace emergency information. This would only apply to public organizations and private sector employers with 50+ employees.
- Provide electronic information in a new format if working with electronic information is necessary to perform the job.
- Deliver individualized workplace emergency information to employees with disabilities.
- Take into account the accommodation needs of employees with disabilities in existing performance management, career development, and redeployment processes.
- Develop procedures that include individual accommodation plans where appropriate for employees returning to work from injury or illness.
- Employers with 50+ employees will also have to file annual accessibility compliance reports with the Ministry for review and approval.
It is important to note that these are only proposed obligations. Based on the feedback received by the Ministry through the consultation process ending in the fall of 2010, these obligations may be changed or new obligations may be suggested. Any changes will be reflected in future editions of the LEQ.
Tips for Employers:
Your organization should familiarize itself with the AODA, particularly the CSS, as it will bind most organizations that provide goods and services beginning January 1, 2012. In addition:
- A compliance team should be assembled or a point person identified both before and after January 1, 2012.
- Existing policies should be reviewed, and new policies and procedures that address the requirements should be created.
- Employee training programs may need to be revised (especially for those employees who deal with customers), as well as any third-party contracts that raise potential compliance issue.
Although the other Accessibility Standards are not law yet, as is demonstrated from the draft Employment Standard, these obligations will likely be proactive and substantial and will likely require additional HR staffing and resources to implement. Therefore, it is never too early to stay apprised of the development of these and other standards.
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Good News for Employers: Right to Manage Sets Limits on Employee Privacy
by:
Toni L. Eckes
It has been said that good things often come in threes — and for employers at least, this has recently been confirmed with the release of three arbitration decisions that support an employer’s right to manage the safety, security and efficiency of its operations through the introduction of policies relating to workplace technology, periodic police record checks, and cell phone records checks, even though these may affect employee privacy rights.
In the 2010 decision of International Union of Elevator Constructors, Local 1 v. Otis Canada Inc. [2010] B.C.C.A.A.A. No. 121 (QL), Arbitrator John Steeves ruled that telematic devices in its company vehicles did not violate employee privacy rights. Otis Canada Inc. had installed devices in its cars that used satellite technology to provide information about the start, stop and idle time of each vehicle, along with the name of the employee driving the vehicle. The information was available to managers and was used to evaluate fuel efficiency, determine if regular maintenance was being done, and whether there was any unauthorized use of the vehicle (the company had a strict policy prohibiting personal use of company vehicles). The devices did not have GPS technology, so they could not provide detailed information about the location of the cars.
The union representing the employees filed a policy grievance alleging that the employer was collecting personal information (the employee’s location) through the telematic devices, and thereby violating the collective agreement and British Columbia’s Personal Information Protection Act (PIPA). Section 1 of British Columbia's Personal Information Protection Act (PIPA) defines personal information as "information about an identifiable individual [that] includes employee personal information but does not include (a) contact information, or (b) work product information." PIPA provides that personal information cannot be collected, used, or disclosed without the consent of the individual. The employer argued that the information being collected was related to its business, and therefore did not constitute "personal information" under PIPA. Further, if the information was "personal information," then both the collection and the use were reasonable.
The grievance was dismissed. Arbitrator Steeves found that the devices were used to record the working time of employees and that this formed part of the company’s general management rights to know what its employees are doing when they are working and when they are using company vehicles. He also found that the only personal information being collected was the employee’s name, and that this did not violate PIPA. There was the potential to use the information to investigate and discipline an employee, but the data being collected by the devices itself did not meet the definition of "personal information," and therefore there was no violation of employee privacy in the circumstances.
A second policy grievance relating to employee privacy rights was dismissed by Arbitrator Wayne Moore in Vancouver Firefighters’ Union, Local 18 v. Vancouver (City) [2010] B.C.C.A.A.A. No. 81 (QL). In this case, the union grieved a policy introduced by the City of Vancouver requiring those employees in its Fire & Rescue Services Department who held "designated positions of trust" to submit to police record checks every five years. These positions were identified primarily as those that have ongoing or significant relationships with vulnerable people or where the main duties involve protecting the security of people and/or material assets. Employees who failed to comply with the policy ran the risk of being disciplined or discharged.
The union did not object to the employer’s practice of requiring police record checks at the time of hire, but argued that the ongoing requirement to disclose information about an employee’s police record, and the requirement that record checks be provided at five-year intervals, breached employee’s statutory and common law rights to privacy and exceeded the employer’s management rights under the collective agreement. The employer asserted that the policy was in furtherance of its legitimate interest in providing safe and effective services to the public.
Arbitrator Wayne Moore upheld the policy with slight modifications. He noted that it was necessary for the employer to determine the suitability of employees, considering its interests in protecting the safety of the public and the security of the public’s property, as well as in ensuring the integrity of its operations and employees. In reaching his decision, Arbitrator Moore noted that in light of the need to maintain public trust and the integrity of its operations, the employer should not have to wait for complaints of misconduct before ensuring that the employees who hold designated positions are appropriate for the job. In his decision, Arbitrator Moore noted that this was not a blanket requirement of a criminal record check on all employees, but was limited to particular employees who had some degree of choice in deciding whether to apply for designated positions.
The third decision in this employer-friendly trilogy is that in the case of Teamsters Canada Rail Conference v. Canadian Pacific Railway Company (Case No. 3900, Canadian Railway Office of Arbitration & Dispute Resolution).
After a number of serious collisions in the railway industry in North America, the Canadian Pacific Railway Company adopted a policy of asking employees to provide copies of their personal wireless telephone records as a routine part of investigations where a significant accident or incident remained otherwise unexplained. In the policy grievance that ensued, the union argued that the company’s request was unreasonably intrusive and violated employee privacy rights, and pointed to a decision by the Privacy Commissioner of Canada in which it was held that telephone records are "personal information" within the meaning of the federal Personal Information Protection and Electronic Documents Act (PIPEDA).
After emphasizing the highly safety-sensitive nature of railway operations in Canada, Arbitrator Michel Picher dismissed the grievance and found that the company’s policy was compliant with the requirements of PIPEDA. In his decision, he noted that given the particular nature of railway operations, "There must be an inevitable balancing of interests between the privacy rights of employees and the interests of a railway employer to ensure safe operations." In addition, Arbitrator Picher was influenced by the fact that the infringement was very narrow and that the company was not seeking any information beyond whether a cell phone had been used in close proximity to a railway accident. There was no attempt to go "behind the privacy" into the contents of any wireless communication. This finding is comparable to the Otis Canada Inc. finding; in that case, the information from the telematic devices only collected the name of the mechanic/driver and no other information personal to the individual, so it was found to be a narrow infringement on privacy.
Key Points for Employers:
- Employers have a right to ensure the efficient, safe and secure operation of their business. In some circumstances, the exercise of management rights will permit a reasonable intrusion upon employee privacy.
- The implementation of technology, policies or practices that permit employers to collect, use and disclose personal information should be as narrow as possible in the circumstances, and should focus on legitimate interests such as ensuring the safe and effective operation of the business.
- In order to minimize the likelihood of a successful complaint or grievance as a result of the introduction of new technology or policies in the workplace, consider providing notice of the changes and informing employees of the objectives behind implementing the technology or policy.
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Fragile Transplants: Adapting Employment Agreements to Québec
by:
Claire Ezzeddin
Where an employment agreement has not been properly drafted or adapted for use in Québec, problems may arise with respect to its enforceability. This is therefore an important consideration for employers on the move or with employees in several jurisdictions.
Québec is the only jurisdiction in Canada in which laws govern the use of language in the employment relationship, including in the drafting of the employment agreement. Québec is also unique in Canada as the only employment law jurisdiction that draws its fundamental contract law principles from the civil law rather than the common law tradition.
Employers generally aim to use uniform and consistent employment agreements throughout their operations; however, it is important to ensure that employment agreements are properly adapted to the applicable laws of the appropriate jurisdiction. This is all the more essential where an agreement drafted under the laws of another province or country is to be used in Québec.
The first step to successfully adapting an employment agreement to the laws of Québec involves getting the language right. Under the Québec Charter of the French Language, employment agreements must be drafted in French unless it is the express will of the parties that they be drafted in English or another language. There must be genuine consent; an employer cannot impose an English-language contract, and an employee’s preference for a French-language employment contract must be respected. It is therefore a standard practice to include a clause in an English-language agreement whereby the employee explicitly acknowledges that the contract has been drafted in English at the express will of both parties.
When it comes to drafting the substantive content of the agreement, Québec law has a number of unique features, particularly with regard to termination provisions. While it may be possible in other Canadian jurisdictions for an employment agreement to validly limit a dismissed employee’s entitlement to notice of termination to the minimum notice required by statute, this is generally not possible in Québec. The Civil Code of Québec specifically provides that an employee cannot renounce his or her right to obtain compensation for any injury that he or she suffers where insufficient notice of termination is given or where the contract is terminated in an abusive manner.
Often, contracts drafted for common law jurisdictions include language to the effect that the employee may be dismissed at any time, for any reason, on reasonable notice. Such a provision may not be enforceable in Québec if the employee has at least two years of uninterrupted service for his or her employer. The Québec Act Respecting Labour Standards provides that an employee with at least two years of service has a right to be reinstated in his or her position if he or she is dismissed without good or sufficient cause. The most notable category of staff excluded from this protection is senior managerial personnel.
Of course, employment standards and rules vary from jurisdiction to jurisdiction, which may impact the drafting of an employment agreement. Applicable legislation in each jurisdiction provides differently for standards including minimum wage, hours of work, overtime, vacation, vacation pay, and leaves. For example, in Québec, entitlement to minimum annual vacation is acquired progressively during a period called the reference year. The reference year runs from May 1 to April 30 unless it is otherwise fixed in an employment agreement. This is just one of many employment standards issues that may need to be considered when an agreement is being drafted or reviewed for compliance with Québec law.
Tips for Employers
Employment agreements must be carefully drafted to ensure they are valid and enforceable in the relevant jurisdiction. If you would like to use an existing employment agreement in a new jurisdiction, it is essential to take the time to have the agreement thoroughly reviewed and redrafted, if required, to ensure compliance with Québec law.
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Tips for Employers on Carrying Out Effective Discipline
by:
Brian Wasyliw
When employees fail to adhere to the reasonable standards of behaviour expected by employers, one response is to take disciplinary measures. While it is certainly possible — and appropriate in some circumstances — to combine discipline with performance management, in fact, discipline and performance management are distinct.
Employers should not issue discipline for non-culpable behaviour, and as such, employers would not find a proper rationale for discipline in an inability to perform the job related to an illness, disability, or lack of training.
Discipline — Purpose and Behaviours Requiring it
Discipline in the workplace serves a specific purpose, i.e., on the one hand, to correct behaviour on an individual level, and on the other, to reinforce expectations and standards on a general level, specifically in the context of certain behaviours and conduct that require it. Below are three typical examples.
First, an employer may be required to respond with discipline to attendance issues, that is, where absenteeism is not accompanied by a reasonable excuse. This reasonable excuse will depend on context, e.g., legitimate illness.
Second, discipline may be required in the context of sub-standard work product or work performance. Examples include missing deadlines or very poor quality of work. Before issuing discipline on these grounds, it is best to ensure that the proper resources are available and that proper training has been provided. Once that is cleared, employers may want to pair disciplinary and performance management responses.
Third, employers can respond to specific "bad conduct" with discipline. Bad conduct could consist of recklessness that causes injury or loss, or it could be more direct, taking the form of theft or dishonesty, disclosure of confidential information, unlawful acts on company property or when an employee is representing the company, conduct towards management or to other employees, or violation of company policies and procedures.
The Employer’s Investigation
When an employer suspects the need to intervene with effective discipline in order to correct such behaviour, the best place to start is with an appropriate investigation. The purpose of this investigation is to ultimately conclude whether it is more likely than not that the employee engaged in behaviour that warrants discipline. The following steps should be taken in order to achieve that purpose:
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Policy requirements. What are they vis-à-vis this employee? Were they properly communicated? Were they understood?
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Past correction of inappropriate conduct. Is this the first incident of such behaviour? Was correction given in the past?
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Training. Was the employee appropriately trained at the outset of employment relationship? Is there a requirement for any re-training?
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Witnesses. Who has witnessed the behaviour? Have they been consulted? What is their knowledge of the matter? Has the veracity of the information provided by the witnesses been confirmed?
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Union representatives. Is this a unionized context? Are there any obligations under the collective agreement that require involvement of a union representative?
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Criminal issues. Is the behaviour suspected to cross into the criminal realm? If so, then legal counsel should be consulted before meeting with any witnesses.
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Document preservation. Are there documents that are relevant to the behaviour and the eventual disciplinary next steps? From whom should these documents be obtained? Did any leads come from the information provided by the witnesses?
The Appropriate Penalty
Having established that the conduct warrants discipline, the next step consists of determining the appropriate penalty. Disciplinary measures will typically follow a progressive pattern (i.e., verbal warning, written warning, suspension of varying lengths, demotion, and finally discharge or termination of employment.) That being so, not every instance requires a progression of discipline. Usually, the severity of the discipline will be significantly influenced by the severity of the conduct.
However, there are several factors that should be considered when determining the appropriate penalty:
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Seriousness of the conduct. Was the conduct wilful? It is often the case that deliberate actions require stricter discipline than careless actions.
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Consequences. What is the nature of the harm or damage that has resulted, or may result, from the bad conduct? The more severe the consequences, the more severe the discipline should be. Although the focus is on the conduct, the strength of the employer’s position is typically reinforced where actual consequences have resulted (as opposed to theoretical consequences).
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Length of service. How long has the employee been with the employer? The length of service may impact the appropriate level of discipline, particularly in discharge cases.
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Past record. Does the employee have a disciplinary record? What discipline was imposed? The principal intention of discipline is to correct the behaviour. For that reason, penalties should be progressive/increase in severity. If the conduct in question is similar or directly related to past bad conduct, then the penalty should be increased.
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Employer-employee relationship. Are there any specific details to consider; for instance, that the employee held a position of trust in the organization?
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Company rules / collective agreements. Do either of these speak explicitly to the appropriate penalty on similar facts? What has been the organization’s past practice in response to analogous conduct? Consistency of punishment is a very important principle when it comes time for an employer to defend the discipline that was imposed. It also promotes certainty and a sense of fairness in the workplace.
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Employer’s potential role. Did the employer play a role in the situation? Was the employee appropriately supervised? Was such behaviour in any way condoned previously? Was there any failure to warn employees that this type of behaviour is inappropriate? The presence of these factors can require a reduced penalty, or may even exculpate the employee from discipline.
Delivering the Discipline
Delivery of the discipline should consist of a letter and a meeting with the employee, both of which have the purpose of explaining the decision that has been made. The communication should include:
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the conclusion resulting from the investigation regarding the behaviour in question;
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reference to any relevant rules, policies or provisions in a collective agreement;
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a statement of the penalty imposed;
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a warning of subsequent discipline in the event of future inappropriate conduct;
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suggestions for how the employee can improve; and
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information regarding available resources to assist with preventing a recurrence.
Lessons for Employers
One of the most important steps in administering effective discipline is to consider both whether you have the facts correct, and whether you can establish those facts with appropriate evidence. Whether it is in a unionized context through a grievance, or in a non-union context as a result of litigation, an employer can easily find itself in the position of having to prove and justify the discipline taken, and to prove the foundation for that discipline on a balance of probabilities. In other words, the employer will have to establish that it is more likely than not that the facts occurred in the manner in which the employer believes. It is very important that the road to discipline starts with an effort to ascertain, as much as possible, the true facts of the matter with an appropriate investigation, and then with a careful consideration of the appropriate penalty and effective delivery of the discipline to the employee.
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Twelve Tips and Observations for Employers whose Employees Travel to Canada on Business
by:
Naseem Malik
Employers will be interested in these 12 key observations and tips for when employees travel to Canada on business. Indeed, for employers who require employees to engage in international business travel to Canada, the border is an important venue for making applications for entry on a temporary basis in situations where a work permit is required, and for consideration under a work permit exempt category. Understanding the dynamics of border or port-of-entry processing is therefore critical.
Tip #1 – Preparing Employees for Travel
Help your foreign national employees or service providers understand the Canadian immigration system prior to travel to Canada.
For example: The first government officials you will encounter when you arrive in Canada are Canada customs officers. Their job is to decide who goes into "Immigration Secondary" for further questioning/processing.
Tip #2 - Work Permit Determination
It is important to make a decision in advance of travel to Canada about whether your employees require a work permit or not.
Whether you are consulting with in-house or external legal counsel, or seeking advice from human resource professionals inside or outside of your company, get a definitive opinion on what possible immigration documents your foreign national employees may require that will allow them to lawfully carry out their activities in Canada.
If a work permit is required, your foreign national employees may be able to pick it up at the border when they arrive in Canada, or they may be required to file that application through a Canadian consulate or embassy abroad.
Tip #3 - Criminality Issues
Advise your employees that any past criminal charges or convictions may result in issues with their admittance to Canada.
In some cases, previous criminality can be overcome and admittance can be achieved through special temporary immigration pardons called Temporary Resident Permits.
Addressing these issues in advance by filing the appropriate paperwork for a Temporary Resident Permit gives the application a much better chance of success than simply relying on the discretion of an immigration officer to allow entry based on the person’s verbal account.
Tip #4 - Temporary Resident Visas
Nationals of certain prescribed countries require special entry visas called Temporary Resident Visas for even a two-hour meeting in Canada, even if they have lawful temporary status in the United States.
These visas can only be applied for at a Canadian Embassy or Consulate outside Canada and can take days/weeks to obtain.
If your employee shows up at the border and does not have the requisite Temporary Resident Visa, he or she will be denied entry to Canada even if he or she did qualify for a work permit or entry under a specific work permit exempt category.
Tip #5 - Medicals
In some cases, an immigration medical is required in advance of travel to Canada — typically if a person has been residing in a designated country such as China or Russia.
Immigration medicals are required if the person has spent six consecutive months living in one of those countries, and intends to spend six months or more in Canada.
If a person needs an immigration medical prior to entry to Canada, they are required to do all of their immigration processing through a Canadian Embassy or Consulate as opposed to the border/port. This can delay entry for weeks or months.
Tip #6 – Supporting Documentation
It is a very good idea to equip your employees (even for short stays) with some type of supporting documentation, such as a support letter that clearly explains the nature and purpose for the visit to Canada and asks for admission based on a specific work permit exempt or work permit category.
Coach your employees to read their support letters carefully in advance so that they can provide consistent answers to questions posed by Customs and Immigration Officials.
Tip #7 – Additional Supporting Materials
Certain work permit categories require additional documentation such as proof of existing business relationships with a company in Canada or a certain level of educational achievement/work experience.
If your employee is making an application in one of those categories, make sure he or she is travelling with all necessary paperwork. Failing to do so may result in the denial of the application.
Tip #8 – Canada Customs
Coach your employees to be clear and specific at the Canada Customs booth when they first arrive so that they stand the best chance of getting a correct referral into Immigration Secondary if a work permit is required, or, if they do not require a work permit, of getting referred directly into the country without a secondary examination.
For example: When asked by Customs, "What is the purpose of your trip?" The employee should truthfully state, "I am going to internal meetings with our Canadian subsidiary for two days." This gives the person a much better chance of avoiding the Immigration Secondary area than saying, "I am here for business."
It is a good idea to have, and read, the supporting documentation well in advance and to encourage employees to ask about the application and the process at port of entry. This will alleviate possible apprehension about the event, and will allow for a more credible presentation. It also places employees in a better position to advocate on their own behalf if they get an officer who doubts the validity of some or all of the submissions in the support letter after assessing the verbal responses of the applicant to see if there are any inconsistencies between what the employee states are his or her reasons for coming to Canada and what the letter purports. Understanding the process itself allows employees to avoid making mistakes like trying to apply for the permit at the primary inspection line (PIL), or being content to be erroneously admitted into the country at PIL, which eliminates their immediate ability to apply for a work permit without re-presenting themselves at the port of entry. This is particularly problematic if they are arriving via aircraft, and/or are far away from a land border.
Tip #9 – Having a Backup Plan
If a person is determined by Canada Immigration to require a work permit, and has unsuccessfully tried to argue for admission in a work permit exempt category, they might be denied entry to Canada.
It is always sensible to canvass off multiple options with your legal advisor in advance.
For example: Based on the facts, you think that the person should be able to come into Canada as a business visitor, which is a work permit exempt category, but the officer processing the case disagrees. If there is a specific work permit category that the person also fits into, the officer may entertain that and allow entry.
Tip #10 – Misrepresentation
Making any type of misrepresentation at the border, however innocent, can result in denial of entry into Canada, and in some cases, a two-year ban from the country.
There is a misconception among some that not being truthful at the border is not a big deal, but actually, this is equivalent in severity to presenting false evidence before a federal government enforcement officer and lying to a police officer.
No matter how inconvenient, always advise employees to respond to questions posed by customs and immigration officials in a completely honest manner.
Tip #11 – Port of Entry
Use the appropriate port of entry and understand the particulars of each office culture just like Visa Posts.
While this skill is primarily honed by trial and error, it is always a good idea to assess where the best places are to have your employees make their application for entry. Certain ports of entry have a more facilitative culture, or have more experience with business travellers so are more adept at processing those types of cases.
Tip #12 – Entry Refusal
Do not "venue shop" after a negative decision.
If your employee is refused entry at a particular port of entry, a good rule of thumb is not to try the same application again at another location. There are exceptions to this general rule, but usually a negative decision will be entered into the Immigration Computer in the Field Operations Support System (FOSS), and another port of entry will not look kindly on your employee trying to "sneak" into Canada by attempting to circumvent the decision of the first office. It is best to try and resolve things with the first port by discussing the case with the officer concerned, or the supervisor.
The Bottom Line
Port-of-entry processing can be a seamless facilitative venture when an application goes smoothly, but an extremely frustrating, stressful and negative experience if the application goes badly. It can result in your employee being denied entry to the country, or unduly delayed in being issued the appropriate documentation by the Canadian Border Services Agency. We hope that the practical tips advice we’ve provided will assist you in advising your employees on how to make an application and what to expect when that application is handled at the border.
