Migrant Workers’ Rights: How does Ontario Law Protect Temporary Foreign Workers?

Migrant Workers’ rights are governed by many different Canadian laws. Immigration rules, employment standards, labour laws, occupational health and safety regulations, as well as contracts and the “common law” all affect migrant workers’ rights in Canada. Many of these vary from province to province. Others are federal or nation-wide. Unfortunately, many migrant workers don’t know what their rights are. Many more know their rights, but get abused any way since fighting back can be risky.

Current low unemployment rates mean that Canadian employers are hiring more temporary foreign workers, with applications up 25 per cent.  But, migrant workers or temporary foreign workers have been part of the Canadian economy for a long time.

While migrant workers might choose to work in Canada for many reasons, recent news stories highlight how difficult life can be for migrant workers. Migrant workers promised good wages might end up with long work days, cramped living conditions, and have their passports seized. Many report that they are forced to pay illegal fees to placement agencies.  Others are injured or hurt while in Canada working to support their families.

What are migrant workers’ rights in Canada or in Ontario?

MIGRANT WORKERS’ RIGHTS, AGRICULTURAL WORK AND HOSPITALITY WORK AND THE EMPLOYMENT STANDARDS ACT

In Ontario, migrant workers’ rights are mostly the same as other workers’ rights. An employee’s immigration status doesn’t affect their right to the minimum wage, overtime pay, public holidays or vacation pay under the Employment Standards Act, 2000.

But, many migrant workers are employed in industries where Ontario law creates exceptions to the general rules.

For example, farmworkers or agricultural employees often work under special rules or exemptions. This includes disentitlement to the minimum wages, maximum hours of work in a day or week, daily or weekly breaks to rest or eat, overtime pay, public holidays and holiday pay as well as paid vacation for many agricultural workers in Ontario. You can find out more about specific rules on the Ministry of Labour website special rule page for Agriculture, Growing, Breeding, Keeping and Fishing.

 Hospitality workers (people who work in a hotel, motel, tourist resort, restaurant or tavern) also include many temporary foreign workers or migrant workers. This industry also has special rules or exemptions. This includes unique rules about overtime for seasonal workers. Seasonal workers in the hospitality industry don’t have the right to overtime until they work more than 40 hours in a week if their employer gives them room and board, which is a common arrangement for migrant workers living far from home. You can find out more about specific rules for Hospitality Workers on the Ministry of Labour website special rule page for Hospitality Services and Sales.  

MIGRANT WORKERS’ RIGHTS TO A SAFE WORKPLACE

All Ontario workers, including migrant workers, have the right to a safe workplace. This includes:

• The right to know about potential hazards in the workplace
• The right to be trained to safely use machinery, equipment and hazardous substances (like chemicals)
• The right to participate in identifying and resolving concerns about your health and safety at work
• The right to refuse dangerous work without being punished
• The right to receive first aid or medical attention if you need it after an injury at work

You can find out more about your rights and duties under the Occupational Health and Safety Act in Guide from the Ministry of Labour , which is also available in Spanish. .

Many Ontario workers are covered by the Workplace Safety and Insurance Board or “WSIB”. This includes most agricultural employees and people working in sales and services, but doesn’t include many live-in caregivers or nannies. Injured workers have the right to apply for WSIB benefits and to have their workplace injuries reasonably accommodated without being punished for making a good faith claim. Migrant workers who are injured on the job (or acquire an occupational illness) can apply to WSIB. You might be covered if you miss work or become disabled due to a workplace injury or illness. You can learn more about the WSIB here (available in Spanish here). Special information about migrant workers rights at the WSIB can be found in the WSIB’s Foreign Agricultural Workers Policy.  

All Ontario employers, whether they are covered by the WSIB or not, have the duty to report serious workplace injuries or accidents to the Ministry of Labour promptly.

MIGRANT WORKERS’ RIGHTS AND DISCRIMINATION

Migrant workers also have the same human rights as other Ontario workers under the Ontario Human Rights Code. This means that they should be able to work without discrimination based on race, place of origin, gender, sexual orientation, family or marital status and disability.

While a lot of discrimination against migrant workers likely goes unreported, it’s in this area that migrant workers have had some of their biggest legal victories so far. For example,

• In 2013 a migrant worker from St. Lucia won $23,500 in a human rights tribunal case after he experienced racism at work and was fired.
• In 2015 two migrant workers won $200,000 in a sexual harassment case against their former employer.  
• In 2017 an injured migrant worker won $20,000 in a disability discrimination case against his former employer.

UNIQUE MIGRANT WORKERS’ RIGHTS

Ontario law does carve out unique protections for migrant workers. Migrant workers rights under the Employment Protection for Foreign Nationals Act (aka the “EPFNA”) include:

• A ban on recruitment agency fees charged to migrant workers by an agency or their employer
• A ban on employers seizing migrant workers’ property (including their passports or work permits)
• A ban on intimidating or punishing migrant workers who ask about their rights under the EPFNA

You can find out more about this special law on this Ministry of Labour webpage or this page.   

Live-in caregivers, a unique category of temporary foreign workers, have additional rights under the Employment Standards Act, which we’ll cover in another post.  

I’M A MIGRANT WORKER BEING ABUSED AT WORK, WHAT CAN I DO?

Migrant workers can fight back.

It’s easy to think that fighting back is too risky or won’t be worth it. This is for each worker to decide for themselves. While no lawyer can guarantee success and every case is different, the human rights tribunal cases discussed above offer some powerful examples of migrant workers fighting for their rights and winning.

Other cases, like the claim for illegal agency fees that we discussed in our blog in May, are still before the courts.

If you believe that your employer or a recruitment agency is breaking the law, you can call Molyneaux Law’s employment and human rights lawyers (in English or Spanish) or another employment lawyer.

You can also contact a migrant workers rights organization or workers rights group like:

• Workers Action Centre
• Caregivers Action Centre
• Justice for Migrant Workers
• The United Food and Commercial Workers Canada’s Agricultural Workers Alliance Program and Workers Support Centres

Some workers may also be able to receive legal aid support through a clinic like the Centres for Spansih Speaking Peoples or another speciality clinic.

Note: Molyneaux Law is not affiliated with any of these organizations, though we think they do some great work!

RESOURCES:

English:

• Your Rights Under the Employment Protection for Foriegn Nationals Act, 2009
• Your Rights Under the Employment Standards Act, 2000

Spanish:

• Sus derechos bajo la Ley de Proteccion Laboral para Extranjeros de 2009
• Sus derechos bajo la Ley de Normas Laborales de 2000

Employment Standards Fact Sheets in other languages are available here.