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Hot topics and recent developments in labour and employment law

Date and time: November 26, 2019

12 p.m. – 1 p.m. ET
10 a.m. – 11 a.m. MT
9 a.m. – 10 a.m. PT

This session is only available via webinar

LSBC: This session is registered for 1 hour of CPD credit with the Law Society of British Columbia.

LSO: This program is eligible for up to 1 Substantive Hour with the Law Society of Ontario.

Join us for a complimentary 1-hour webinar where we will highlight the changes you need to know about and identify the trends that we expect to affect your workplace in 2019.
Topics will include:

  • Managing Harassment Investigations under the OHSA: Requirements and Pitfalls
  • A Case Law Update on Sexual Harassment
  • Creating Enforceable Contracts: Consideration in the Employment Context

Please confirm your attendance by Thursday, November 21.

Speakers

Questions

Please contact Carla Vasquez, Events Manager, at carla.vasquez@dentons.com or +1 416 361 2377.

Register now

Hot topics and recent developments in labour and employment law

Dentons’ Employment and Labour Fall Seminar

Date and time:
October 25, 2019, 8:30 AM EDT to October 25, 2019, 1:00 PM EDT

Location: 
Dentons Canada LLP77 King Street West
5th Floor 
Toronto, Ontario 
Canada

Dentons’ Labour, Employment and Pensions Group will be hosting a half-day seminar on emerging workplace and human resources issues on Friday, October 25, 2019. The following topics will be discussed:

HRPA accreditation

This program has been approved for 3 (CPD) hours under Section A of the Continuing professional development (CPD) Log of the Human Resource Professionals Association (HRPA).

CPD accreditation 

This program is eligible for 2 hours of substantive content required by the Law Society of Ontario.

Agenda

  • 8:30 a.m. : Registration and breakfast
  • 8:50 a.m. – 9:55 a.m. : Opening remarks and guest speaker
  • 10:10 a.m. – 12:40 p.m. : Breakout sessions
  • 12:40 p.m. : Lunch and networking

Questions

Please contact Melis Dimitriou, Client Development Coordinator, Events, at melis.dimitriou@dentons.com or +1 416 361 2336.

Dentons Canada LLP is committed to accessibility for persons with disabilities. Please contact us at toronto.events@dentons.com in advance of the event if you have any particular accommodation requirements. We will work with you to make appropriate arrangements.

Dentons’ Employment and Labour Fall Seminar

History of the Start-Up Business Class

The Start-Up Business Class began as a five-year pilot program targeting foreign entrepreneurs with the skills and potential to build businesses in Canada that: (a) were innovative, (b) could create jobs for Canadians, and (c) could compete on a global scale.  Entrepreneurs seeking permanent residence under the Start-Up Business Class were not required to personally invest any capital in the proposed business. 

Despite the relatively small number of cases processed during its initial five-year period, the Government of Canada considered the pilot program to be a success.  On July 18, 2017, IRCC announced its intention to establish a permanent Start-Up Business Class once the pilot program expired on March 31, 2018.  The final regulations for the permanent Start-Up Business Class became effective on April 11, 2018.

I am pleased to have played a small role in the creation of Canada’s Start-Up Business Class.  Near the end of 2011, I first raised the idea of a start-up visa with Mr. Jason Kenney, during a fundraiser for a local political candidate.  Mr. Kenny is currently the Premier of Alberta but, at the time, he was Canada’s Federal Minister of Citizenship, Immigration and Multiculturalism. 

Earlier that year, the StartUp Visa Act of 2011 was introduced in the United States Congress.  During my discussion with Mr. Kenny, I mentioned the proposed bill.  I also explained that, since it was unlikely to become law in the United States, Canada could attract entrepreneurs who might otherwise be destined for the United States by establishing a start-up visa program of its own. 

Mr. Kenney initially believed that a start-up visa program would simply be a variation of the existing Entrepreneur Class (which was ultimately terminated 2013).  However, I explained that a start-up visa program would differ from existing investor and entrepreneur options to the extent that the entrepreneur would not need to be the source of investment capital.  Such a program would enable foreign entrepreneurs who established start-up businesses using capital contributed by third parties, such as venture capital firms or angel investors, to seek permanent residence in Canada.  By the end of our discussion, he warmed up to the idea of a start-up visa program. 

On April 18, 2012, Mr. Kenney announced public consultations on the possible creation of a new program to attract immigrant entrepreneurs.  On January 24, 2013, he announced that the Government of Canada would launch a start-up visa program to recruit innovative immigrant entrepreneurs who would create new jobs and spur economic growth.  On March 30, 2013, Citizenship and Immigration Canada published Ministerial Instructions in the Canada Gazette, which formally established the new Start-Up Business Class. 

Read Henry J. Chang’s full article on the Start-Up Business Class here.

History of the Start-Up Business Class

Proposed change to afford certain temporary foreign workers with increased mobility

Immigration, Refugees and Citizenship Canada (IRCC), and Employment and Social Development Canada (ESDC), have proposed an amendment to the Immigration and Refugee Protection Regulations (IRPR), which would provide increased employment mobility to certain foreign workers under the Temporary Foreign Worker Program (TFWP). The proposed amendment was published on June 22, 2019, in Part I, Volume 153, Number 25 of the Canada Gazette.

Under the TFWP, to hire a foreign worker, employers must obtain an approved Labour Market Impact Assessment (LMIA) from ESDC, pursuant to which IRCC issues a work permit. The current program only authorizes the issuance of an employer-specific “closed” work permit. Foreign workers are, therefore, completely dependent on the employer noted on the work permit. Should a foreign worker wish to leave the current employer to take up new employment, a new LMIA and work permit would currently be required. This is a costly process, requiring a great deal of time and effort. Moreover, the costs and effort would primarily be required on the part of the new employer, which only makes finding such an opportunity more difficult.

As a result of the above, the TFWP in its current form, grants a great deal of power to employers. As many foreign workers are unlikely to find another employer willing to navigate the process of obtaining a new LMIA, these workers have little option but to endure difficult employment conditions. Considerations such as these have prompted IRCC and ESDC to propose the change.

The proposed amendment would introduce LMIAs and work permits that are occupation-specific instead of employer-specific. Occupations in Canada are defined and organized in accordance with the National Occupational Classification (NOC), which assigns each occupation a four-digit NOC code. Pursuant to the proposed amendment, the new LMIAs (and the resulting work permits) would instead be specific to a particular NOC code, and not to a specified employer. This would afford foreign workers increased employment mobility by allowing them to change employers without first obtaining a new LMIA or work permit, so long as they remained in the same occupation. This would remove the most significant barrier to finding suitable alternative employment, as new employers would not be burdened with the cost, time and efforts required to support a new LMIA application. With this barrier removed, the effect would be to restore some power to foreign workers, allowing them increased opportunity to leave undesirable employment situations.

Notably, the proposed change to the TFWP would not affect all streams of the LMIA. Instead, it is intended to target two LMIA streams that are used to employ the most vulnerable of temporary foreign workers; the Low-wage Stream and the Primary Agriculture Stream.

The High- or Low-wage Streams of the LMIA are defined by reference to a provincial or territorial median hourly wage, as published by ESDC. By way of example, the Ontario median hourly wage is currently CA$22.50. Therefore, positions in Ontario that offer a wage at or above the median hourly wage are processed under the High-wage stream, while positions offering a wage lower than this are processed under the Low-wage Stream.

As its name suggests, the Primary Agriculture Stream is used to employ foreign workers on a farm, nursery or greenhouse. Such employment will involve one of the following: the operation of agricultural machinery; obtaining raw animal products for market; or the processing of raw products, the planting, care, harvesting or preparation of crops, trees, sod or other plants for market.

The two above LMIA streams are primarily used to employ low-skilled foreign workers, as these positions require little-to-no education and provide workers with minimal wages. As a result, the proposed amendment to the IRPR should provide increased employment mobility, and therefore, power in the employer-employee relationship, to the most vulnerable of Canada’s temporary foreign workers.

It remains to be seen whether IRCC and ESDC will move forward with the amendment, and whether there is any appetite to provide similar changes for the LMIA streams used for more highly-skilled foreign workers.

Proposed change to afford certain temporary foreign workers with increased mobility

Hot topics and recent developments in labour and employment law

1 p.m. – 2 p.m. ET
11 a.m. – 12 p.m. MT
10 a.m. – 11 a.m. PT

This session is only available via webinar

CPD/CLE Accreditation

LSBC: This session is registered for 1 hour of CPD credit with the Law Society of British Columbia.

LSO: This program is eligible for up to 1 Substantive Hour with the Law Society of Ontario.

Join us for a complimentary 1-hour webinar where we will highlight the changes you need to know about and identify the trends that we expect to affect your workplace in 2019.

Topics will include:

  • Update on Quebec’s new draft regulation concerning personnel placement agencies and temporary foreign worker recruitment agencies
  • The latest on workplace harassment and investigations
  • Drug and alcohol testing checklist for employers

Speakers

Andy Pushalik, Partner, Toronto

April Kosten, Partner, Calgary

Ryan Martin, Associate, Montréal

Questions

Please contact Melis Dimitriou, Client Development Coordinator, Events, at melis.dimitriou@dentons.com or +1 416 361 2336.

Register now

Hot topics and recent developments in labour and employment law

Cannabis in the United States and its implications in naturalization applications

In April 2019, the media reported that the United States Citizenship and Immigration Services (USCIS) had denied the naturalization applications of at least two lawful permanent residents who had worked for state-licensed cannabis businesses in the State of Colorado. The Mayor of Denver even wrote a letter to Attorney General William Barr, requesting formal guidance from the US Department of Justice, which would clarify and adjust policies that are negatively impacting the legal immigration status of individuals who work, or who have previously worked, in Colorado’s legal cannabis industry. 

The Attorney General has not responded to the Mayor of Denver. However, USCIS issued a Policy Alert a few weeks later, announcing that it had updated its Policy Manual to clarify this issue.1 However, instead of resolving the issue, the updated guidance simply reiterates that cannabis-related activities will likely bar a lawful permanent residence of the United States from naturalization, even if those activities take place in a state that has legalized cannabis. 

This article was first published on dentons.com. Read the full article.

Cannabis in the United States and its implications in naturalization applications

Dentons’ Employment and Labour Seminar

You are invited to the Dentons’ Labour, Employment and Pensions group half-day seminar on emerging workplace and human resources issues. Join us on May 31st at this complimentary seminar to discuss topics such as:

CHRP accreditation

This program may be eligible for recertification points.

CPD accreditation

This program may be eligible for substantive hours required by the Law Society of Ontario.

Agenda

8:30 a.m.Registration and breakfast
8:50 a.m.–9:55 a.m.Opening remarks and guest speaker to give an update on drug and alcohol testing 
10:10 a.m.–12:40 p.m.Breakout sessions
12:40 p.m.Lunch and networking

Questions

Please contact Melis Dimitriou, Client Development Coordinator, Events at melis.dimitriou@dentons.com or +1 416 361 2336.

Dentons Canada LLP is committed to accessibility for persons with disabilities. Please contact us at toronto.events@dentons.com in advance of the event if you have any particular accommodation requirements. We will work with you to make appropriate arrangements.

Dentons’ Employment and Labour Seminar

Immigration consequences of Canadian criminal offences

When criminal lawyers represent their clients, they may not always consider the immigration implications of the case. However, unless their client is a Canadian citizen, many criminal offences will have potentially adverse consequences. A brief discussion of immigration consequences arising from Canadian criminal offences is provided below.

This article was first published on dentons.com. Read the full article.

Immigration consequences of Canadian criminal offences

How US federal cannabis legalization would affect US immigration laws

During the 115th United States Congress, several Bills were introduced to legalize marijuana at the federal level. The Bills that received the most attention were: (1) the Strengthening the Tenth Amendment Through Entrusting States Act (STATES Act); (2) Marijuana Justice Act of 2017/Marijuana Justice Act of 2018 (Marijuana Justice Act); and (3) the Marijuana Freedom and Opportunity Act (Marijuana Freedom Act). However, when the 115th United States Congress ended on January 3, 2019, these three Bills (collectively, the Congressional Bills) died.

The Congressional Bills must be reintroduced in the 116th United States Congress before they may be considered again. Assuming that all three are eventually reintroduced (without change) during the 116th United States Congress, an analysis of how they might affect the ability of foreign nationals (i.e., individuals other than US citizens) to enter the United States is provided below. 

This article was first published on dentons.com. Read the full article.

How US federal cannabis legalization would affect US immigration laws

Pay Transparency is Back (Maybe)

As you will recall, the Pay Transparency Act, 2018 was passed by the previous Ontario government and was scheduled to come into effect on January 1, 2019. In fall 2018, the current administration postponed the effective date indefinitely, leading many to speculate that the legislation would not come into force.

However, we may yet see pay transparency legislation in Ontario. In February 2019, the Ministry of Labour opened public consultations concerning the reporting requirements of the Pay Transparency Act. These consultations closed on April 5, 2019.

As a reminder, the Pay Transparency Act includes the following key concepts:

Employers will not be allowed to ask for compensation history from a job applicant or through an agent.

Employers will be required to include the expected compensation or range for a position in all publicly advertised job postings.

Reprisals by employers will be prohibited against employees who disclose, inquire about or discuss compensation.

Employers with 100 or more employees would be required (this would be phased in over time) to submit and post a pay transparency report annually, which includes information about the employer’s workforce and differences in compensation between male and female employees.

The consultation paper asks for submissions on the following issues:

Because hourly wage gaps alone would not capture all aspects of compensation differences between males and females, what additional wage gap calculation should be required in order to create a more accurate picture – for example, bonuses, overtime pay, commissions?

What reporting period do employers prefer to use to calculate average and median hourly gender wage gaps – for example, calendar year, a prescribed period such as a pay period or specific week, fiscal year, etc.?

Do employers with 100 or more employees currently have all the information they would need to calculate the organization’s median and hourly gender wage gaps for a specified period?

How much do employers with 100 or more employees estimate the cost of pay transparency reporting will be with respect to IT and software costs, personnel costs and other costs?

How many hours do employers with 100 or more employees anticipate that pay transparency reporting will take in total?

We will update our readers once the government issues the results of the consultation process.

Pay Transparency is Back (Maybe)