Friday, June 11, 2010

Advertising requirements before hiring a foreign worker

June 2 2010
By:Fasken Martineau DuMoulin LLP

In our January 2010 article entitled Obtaining a Work Permit in Canada: The Labour Market Opinion Process, we explained that in order to get a work permit for a foreign worker, an employer in Canada generally must first obtain a Labour Market Opinion (LMO) from the Department of Human Resources and Skills Development Canada ("Service Canada"). In order to obtain a positive LMO, Canadian employers must prove that they have made reasonable efforts to fill the position with a Canadian citizen or permanent resident. This article discusses Service Canada's advertising requirements relating to this obligation.

Service Canada's minimum advertising requirements were recently modified. And note that the requirements are slightly different for the Province of Québec. If you are hiring an employee who will work in Québec, make sure you follow the Québec rules.

The advertising requirements depend on the level of skills required for the position. In Canada, there is a National Occupational Classification (NOC) system that classifies all jobs. Before starting a recruitment process, it is necessary to identify the code that corresponds to the position to be filled. Occupations are classified in five levels: 0 (management), A (university education usually required), B (either a college education or apprenticeship training usually required), C (secondary school and/or occupation-specific training usually required) or D (on–the-job training usually provided).

Placing an ad at Service Canada's National Job Bank is mandatory before hiring a non-Canadian in any position at skill level B and lower, except when an explicit exemption applies. Positions at levels 0 and A are the only ones for which an advertisement on the Job Bank is not mandatory.

In order to meet the advertising requirements for occupations at levels 0 or A, employers must conduct recruitment activities consistent with the practice within the occupation. For instance, if the normal practice for a certain occupation is to hire a headhunter, or to advertise on well-known internet job sites, journals or national newspapers, either recruitment method will be considered satisfactory. Alternatively, the prospective employer may advertise on the Job Bank for a minimum of 14 calendar days during the three months prior to applying for the LMO.

For occupations at skill level B and lower, both advertisement on the Job Bank and recruitment activities consistent with the practice within the occupation are necessary.

The contents of the advertisement are important. Ads placed on the Job Bank must include certain mandatory information, including the company's name, the wage range and the prevailing wage for the position. Prospective employers are advised to follow very carefully Service Canada's directives. Omission of any information or requirement (for instance, advertising for thirteen days instead of fourteen days) is cause for refusal of the LMO.

The ads have to be carefully drafted since they should provide a fair opportunity to potentially qualified Canadian citizens or permanent residents to be a candidate. At the same time they have to be specific enough to discourage applications from those who are clearly unqualified. Particular attention should be given to the education and experience requirements. These should be appropriate for the type of position and consistent with the requirements for this position according to the NOC.

Afterwards, the employer has to provide proof of these recruitment efforts and provide a report. The report should include the number of applicants for the position and the reasons for rejecting them. The reasons for rejecting applicants should be appropriate and based on objective and clear criteria. Employers should retain proof of recruitment efforts for a minimum of two years, since Service Canada may later contact the employer for verification of the report.

Note that there are certain variations to the minimum advertising requirements for some categories of employees or positions including: academics (university professors), camp counselors who will be working in Ontario, positions covered by collective bargaining agreements that stipulate internal recruitment, positions for which recruitment is done through employer associations, positions in the entertainment sector, positions with a foreign government's representative in Canada, information technology specialists (until September 30, 2010), holders of a post graduation work permit issued after graduating from a Canadian university, company owners who are involved in the day-to-day operation of the company, specialized service technicians and service providers under a warranty, amongst others.

Advertising properly is not the only requirement for obtaining a positive LMO, but is one that deserves considerable attention. Be sure that you meet them all. Also, before starting a recruitment process when contemplating applying for an LMO, do not forget that there are exemptions to the obligation to obtain an LMO (see our March 2010 article Obtaining a Work Permit in Canada: The Simplified Process). Using these exemptions can save prospective employers considerable amount of time, effort and money.
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