There are several misconceptions that we occasionally deal with in the course of our corporate immigration practice. Below you will find answers to some of the frequent answers that arise in the course of our practice.
Eligibility to apply for LMO
Q. Are LMOs restricted to large employers?
A. This is a common misconception. The eligibility to apply for an LMO is not restricted to large companies and in no way depends on the size of the company. We have successfully obtained positive LMOs for construction companies consisting of five people as well as larger companies with multiple locations across Canada.
The Employment Relationship
Q. Does a positive LMO obligate the employer to hire and keep the employee pursuant to the LMO or for the duration of the issued work permit?
A. If a company decides not to support the work permit application with a job offer letter – the foreign worker cannot obtain a work permit and therefore the contract is void.
Once the potential worker obtains a positive work permit and starts working he is subject to Canadian labour laws just as any domestic worker would be. The temporary foreign worker will obtain a Social Insurance Number and will be on the same payroll and will have the same employment rights as Canadians citizen or permanent residents.
As with local workers, the employer needs to follow all applicable provisions of the Employment Standards Act (“ESA”) and any other applicable laws and regulations. Specifically, the employer must abide by the standards with respect to how wages are paid, how overtime is calculated, meal periods, statutory holidays, annual leave, family leave, benefits and recourse under the terms of the ESA. Like local workers, employers must remit all worker’s income deductions to the Canada Revenue Agency (in Quebec, also to Revenu Québec) as prescribed by law, including, but not limited to Employment Insurance, Income Tax, Canada Pension Plan or Quebec Pension Plan.
Q. How do I terminate a foreign worker?
A. There is no difference between terminating a foreign worker and domestic worker. Termination is governed by the ESA and the employment contract. Laws and remedies related to termination of employment are identical for domestic and foreign employees. The ability to terminate an employee is not determined by or related to the validity of the LMO or the work permit. The LMO does not obligate the employer to maintain the employment relationship for a specific period of time. When a temporary foreign worker is dismissed, he is eligible to remain in the country until his work permit expires.
Q. Can a foreign worker on a closed work permit change jobs?
A. Unless the new employer successfully applies for a new LMO no change of employment is permitted. Without the 2nd LMO there is no mobility within the market place and thus foreign worker have a strong incentive to remain with their initial employers for the duration of their work permit.