The struggle to enforce migrant worker rights in B.C.: An interview with HEU lawyer, Kaity Cooper

1439227998118By Daniel Tseghay

On October 8th and 9th, Simon Fraser University hosted a conference on Temporary Migrant Workers entitled “Labour Rights and Organizing Strategies”. RankandFile spoke with one of the presenters, Kaity Cooper, about the legal challenges facing migrant workers and some potential legal reforms. Cooper is a lawyer with the Hospital Employees’ Union and has extensive experience represented migrant workers before the Workers’ Compensation Board and Workers’ Compensation Appeal Tribunal, Employment Standards Branch, Human Rights Tribunal and Citizenship and Immigration Canada.  As part of the conference, Cooper presented a paper with co-author Jodie Gauthier entitled “Bringing up B.C.: The negative impacts of the Temporary Foreign Worker Program on vulnerable workers and proposals for regional action.” The paper’s overview of migrant worker experiences and details on the complaint-driven process, the lack of protections, and the facilitation of employer intimidation provided a springboard for this discussion with RankandFile.

What are some of the challenges migrant workers face?

The paper is focusing on the low-wage streams of the migrant workers program. These include farm workers, live-in caregivers, and temporary foreign workers who are brought into Canada to earn low wages. This is a unique group of migrant workers because they are really treated like a temporary workforce to fill shortages in Canada. So it’s not like other migrant workers who come from more developed countries, who often get a lot of privileges when they come to Canada. These workers are here usually for a short period of time. They’re usually tied to a single employer. And they have a lot of difficulty enforcing their legal rights.

You write about the fear migrant workers have in challenging employers.

That’s something I noticed when I was working at a non-profit here in Vancouver. There were a lot of migrant workers who come to Canada and, for whatever reason, there’s some problem with their immigration status. It might have been that they were brought here by a recruiter, paid $10,000 to get here, but when they arrive they realize that the job they were promised didn’t exist. Or they get to their job and their employer asks them to do work that’s not authorized by their permit and they feel obliged to do that work because otherwise they could lose their job and their right to stay in Canada. So one thing I was noticing was that because of those immigration irregularities, when their employers exploit them, they’re scared to do something about their rights. If you report an employer, there’s always a risk that the employer will call the CBSA [Canada Border Services Agency]. Workers are certainly too afraid to enforce their legal rights.

How common is it for employers to threaten workers with calling the CBSA?

It’s very common. The organization in Vancouver that deals the most with temporary foreign workers is the West Coast Domestic Workers’ Association and they submitted reports where they identified retaliation as something that migrant workers face all the time. In my experience, as the legal representative of a number of migrant workers, it might not be explicitly stated but often when you are sending letters back and forth with employers arguing that the workers should be compensated, you’ll get comments in the letter saying things like “the worker wasn’t authorized to do this work” or “the worker didn’t have a work permit during this period of time” and you know the reason for those comments is to hint that the worker could be in trouble if they pursue their legal rights.

Many workers lose their status while they’re here. Can you describe some of the ways workers can lose their status and what they experience being in the country without legal status?

One example that I’ve heard a number of times is the worker who’s in Canada and has a work permit but for whatever reason their employment ends. And so they need to find another employer in order to stay in Canada. What’s really common is the new employer will ask that worker to do a trial period where the worker will work for a few weeks and the employer will decide whether or not they’re a good enough worker to warrant all of the extra costs and paperwork of getting the labour market opinion. So that period of work without a work permit is considered unauthorized work. Even though it was asked of the employee by the employer, according to immigration law that worker now has violated their conditions to remain in Canada and if you violate the conditions you’re considered inadmissible which means you can be deported and prevented from coming back to Canada for a period of time. All that an employer needs to do to get that person deported is contact the CBSA. They even have an anonymous tip line that people can call to report individuals who are working outside of their conditions. It puts workers in a very vulnerable situation.

Can you describe the more local realities?

B.C. does have some unique features in our legal system that make it a particular problem for migrant workers. For the most part employment rights for a migrant worker – it’s the employment standards system that will address those rights. So employment standards deals with things like minimum wage, hours of work, and vacation. In BC our system is complaint-driven which means to enforce your legal rights you, the worker, have to actually submit the complaint and proceed through the whole process up to potentially a legal hearing. If you can imagine, somebody who’s from a different country, maybe English isn’t their first language, they’re afraid of losing their ability to stay in Canada – you can imagine for that person, it would be a pretty serious obstacle to not only initiate the complaint but to pursue it through the many months or even years that they sometimes take. And in B.C., right now unfortunately we have a serious underfunding and understaffing of the employment standards system so it’s not uncommon for complaints about things like wages to take a year or more to be resolved.

Your paper discusses measures to address these issues.

The key to any changes is making the system more accessible to a very vulnerable population. One of the suggestions we had was to allow for anonymous complaints so that a worker could make a complaint to the employment standards system without having their identity disclosed to the employer and then face the risk of retaliation. In other provinces, what might happen is an employee could make a complaint and then the branch would actually do the investigation itself and would pursue the complaint itself and at no point needs to tell the employer who it was who made the original complaint. That would go a long way to reduce the vulnerability of this group. Another suggestion, especially with the immigration retaliation, is to beef up retaliation protections. Right now in the employment standards act we do have a prohibition against retaliation but there are a couple problems with the provision. First, the onus is on the employee, and it’s difficult for an employee to enforce the retaliation protections. But also there really aren’t any good penalties for the employer who’s found to retaliate. In California, for example, in their legislature, if the employer reports an employee to immigration after that employee has filed an employment standards complaint, there’s a presumption that they retaliated and the fines can be up to $10,000 and the suspension of the business license. In B.C., we’re looking at potentially a $500 penalty. Not a lot of deterrence there.

You also write about Sanctuary City policies. Can you describe what it is and, more broadly, whether or not you’re optimistic about the future for migrant workers being protected by the law?

Sanctuary City policy is a municipal level policy that says irrespective of immigration status people should be able to access basic services. The difficulty of sanctuary city is a lot of the laws that I’ve been talking about at the provincial and federal level, sanctuary city really only impacts the municipal level, but it is something. For police and transit police forces, local clinics, and shelters, education, having that policy goes a long way to change the dialogue in a city and really helps citizens that irrespective of someone’s immigration status they should be treated with equal respect and nobody should be prevented from going to some vital public service because of their immigration status. On the municipal level, I am very optimistic that Vancouver will take that resolution. On the provincial and federal level, I’m not as optimistic. At least under this particular provincial government, we have seen a lot of cuts to administrative tribunals such as the employment standards branch and a lot of the problems I’ve identified in B.C. really come down to a lack of funding and a lack of staffing. Until we have a government that’s willing to properly fund those areas, I really don’t see much likelihood of a change.

Check out the B.C. Employment Standards Coalition for more information.

 

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