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Brexit, a global perspective in the immediate aftermath…

Brexit Immigration

Following the UK’s EU referendum, the UK has a clear mandate for exit from the European Union. There is doubt, however, about what the future may look like for the UK and its relationship with Europe or the rest of the world. It is likely that there will now be a prolonged transition period, with the next UK government needing time to plan, prepare and negotiate the UK’s future.

Some key thoughts in the meantime:

  • For UK nationals living elsewhere in the EU, and EU nationals living in the UK, there will be no immediate change. Protection of citizens already established in those states is likely to form part of negotiations between the UK and the EU.
  • Free movement of EU citizens is expected to be negotiated as a condition of any trade deal between the UK and the EU. However, if ultimately the UK decides to no longer share in the EU’s right to free movement of labor, then citizens of other member states will not enjoy an automatic right to work, travel and live in the UK. Similarly, UK citizens will not enjoy EU citizenship rights. Prior to the referendum, the UK had already made it more difficult for EU citizens to gain permanent residence in the UK. However, the UK government will be aware that imposing fundamental limits on the free movement of labor at this time could make the UK a much less attractive destination for international businesses and skilled and educated migrants.
  • Nationals of other countries working in the UK, such as from the US, should see no imminent changes. The UK government is saying that the UK is open for business on a global scale. This is an opportunity to grow and strengthen relationships across the globe. At present the UK is not seeing any large-scale recruitment freezes or job losses.
  • Trade and investment are good for the UK’s employment growth and stability. The UK government will want to keep a level playing field with the UK’s European counterparts, and look for opportunities across the globe, at this crucial time. One key area where it will want to display its good practice is data protection. Realistically, a trade deal between the UK and the EU may also mean the UK continuing to be subject to key EU legislation.
  • The UK has a body of homegrown legislation protecting UK employment law rights. The fundamental right that exists in the UK to claim unfair dismissal will not be affected by its withdrawal from Europe. The UK also had discrimination laws in place before its ascension to the EU; EU aims and legislation are so established in UK good employment practice that they are likely to remain fundamentally the same for now. While moving to a US-style system, where employees receive lower overall protection, is possible, it is unlikely in the short term, given the broader cultural change needed to accept the US norms.
  • Subject to the above, EU rights, or improvements in those rights, in the UK may eventually be diminished or lost. However, it seems likely that grand proposals will eventually be reduced to a few smaller, less significant changes. If the UK is not required to keep EU legislation in these areas as part of a broader deal, the government may review and make changes to the current position in a number of areas, such as: (i) harmonization of terms following a TUPE transfer, (ii) limits on bankers’ bonuses, (iii) working time controls, (iv) collective redundancy consultation, (v) agency workers’ rights and (vi) the absence of a cap on discrimination awards.
  • If the UK is no longer subject to the jurisdiction of the European Court of Justice, UK case law may develop in a slightly different direction. This may mean a gradual parting of ways between the UK and EU states.

On balance, it is most likely that the next government will want to preserve the status quo, at least in the short term, and wait for the dust to settle before looking for opportunities to make more fundamental and valuable changes. Dentons will keep you posted as the picture evolves.

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Brexit, a global perspective in the immediate aftermath…

Global Employment Lawyer – Volume 2, Issue 1 – November/December 2015

Global Employment Lawyer - Nov. & Dec. 2015

 

Look out, beware—it’s holiday party season!

For many companies, having an annual holiday party is part of the culture and tradition of the organization. Company holiday parties provide employees with an opportunity to socialize and celebrate together, and can certainly help boost morale and engender loyalty. At the same time, however, there are risks lurking. Depending on the type of party and the part of the world you are having it in, there are different types of risks that can come into play—and we have some tips to mitigate them.

What’s not risky? Keeping up to date on the hot topics in employment and labor issues from around the globe which could affect your business goals in those regions.

From all of your friends at Dentons, we wish you a happy, healthy and prosperous holiday season!

Read the complete issue

 

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Global Employment Lawyer – Volume 2, Issue 1 – November/December 2015

Global Employment Lawyer – Issue 3

Summer 2015

Global Employment Lawyer

The third edition of the Global Employment Lawyer provides you with practical content to keep you current on developments that effect your business goals around the globe. Our lawyers look at questions of religious accommodation as well as the unpleasant income tax consequences of temporary visas in the US; managing “difficult employees” in Canada; reducing workforce due to redundancies in China; imminent changes to Polish labor law; recruitment of non-resident foreign workers in Angola; employing foreign workers in Israel and whistleblowing in the UK.

Read more

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Global Employment Lawyer – Issue 3

Much ado about nothing

Work work work

On March 24, 2015, the Department of Homeland Security’s (DHS) Office of the Inspector General (OIG) issued a report critical of former Citizenship and Immigration Services (USCIS) Director and current DHS Assistant Secretary Alejandro Mayorkas’ handling of the EB5 immigrant investor visa program entitled “Investigation into Employee Complaints about Management of U.S. Citizenship and Immigration Services’ EB-5 Program. ”

One would be forgiven for thinking that a great problem with the EB5 program was revealed that needed immediate attention, from some politician press releases and reports from certain news services that seem to have only read these releases and not the 97 page report.

Not true.  Here is what the report concludes:

Mr. Mayorkas’ actions in these matters created a perception within the EB-5 program that certain individuals had special access and would receive special consideration. It also lowered the morale of those involved.

No finding of special access or special consideration, only “created a perception” of this to some USCIS staff who reported that “lowered the morale of those involved.”  I can already predict how John Oliver of Last Week Tonight will lampoon the government for these revelations.

To put this into context, former Director Mayorkas led the USCIS in 2013 when the DHS OIG issued an earlier report recommending that the agency and Congress make a number of changes to the way the EB5 program was handled.  That report is available at the DHS OIG web site.

Mr. Mayorkas led the implementation of those changes, which resulted in the creation of the Immigrant Investor Program Office (IPO) and major changes to the USCIS employees responsible for administering the program, including hiring new staff trained in securities law, fraud detection, and economics, and relocation of the office from California to Washington, which resulted in additional staff changes.  Further, he brought in Nicholas Colucci, then Associate Director at FinCEN – the Financial Crimes Enforcement Network, which is the anti-money laundering regulator for US financial institutions – to serve as IPO Chief instead of promoting from within.

That feathers were ruffled for a small group of 15 miffed USCIS employees comes as no surprise. As the President of the American Immigration Lawyers said in response to the report:

But when have you ever heard of a large organization in which everyone wholeheartedly embraced changes to the way things have “always been done”? Mr. Mayorkas was responsible for leading an agency with some 15,000 employees in 200 offices across the world. The EB-5 program was just one of dozens of programs led by Mayorkas, with many of them troubled by some of the problems that have plagued EB-5. All too often its decisions failed to meet the “fundamental threshold for rational decisionmaking,” in the words of one federal judge overruling a decision denying a visa petition.

The EB5 program creates jobs for American workers, most often in areas targeted for rates of unemployment 150 percent or more above the national average.  For every 10 fulltime-equivalent jobs for American citizens and lawful residents created, an EB5 immigrant makes a minimum $500,000 investment and sometimes more than twice that amount.

USCIS processing of EB-5 cases is slow, very slow.  Slower than any other immigrant visa petition handled by the agency.  While the USCIS processes most petitions within four to five months and even offers a 15-day premium processing service for many, EB-5 petitions on the average languish for three times as long or longer before an officer is assigned and begins work.  And that is just the first step of the multiyear process to obtain permanent resident status, with an immigrant’s invested funds committed to and at risk in the American investment during the entire period, often five years.  It is this slow agency processing that jeopardizes the EB-5 program more than anything else.  Leadership to improve the speed at which USCIS staff work should be encouraged even if it also lowers morale.

Congressional action is needed.  The pilot program portion of the EB-5 program expires September 30, 2015, as it has every three years since enactment.  Every three years, Congress waits until the last minute and then votes to renew the program for another three years, sometimes taking action only after the program expires.  Every three years this creates uncertainty for the American workers whose jobs are created by the EB-5 program, the American businesses that rely on the EB-5 immigrant investors for financing, and the immigrant investors themselves who rely on the EB-5 program to create a new home for their families in the United States.  Congress needs to act quickly to renew the program and not jeopardize this important tool for American job creation.

The full text of the report is available at the DHS OIG web site.

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Much ado about nothing

Focus: Sanctions and Sanctions Clauses

Sanctions

As you know, the United States, the European Union, Canada, Australia, Switzerland, Japan, and certain other countries have introduced a wide array of individual, sectoral, and Crimea-related sanctions on Russia due to the situation in Ukraine. Russia holds that these sanctions are illegal and unenforceable.

Because of the conflict, some businesses with a presence in Russia may find themselves exposed to inescapable risk while trying to adjust to both the Western sanctions on the one hand, and new provisions in Russian law on the other.

To address this, Dentons has formed a small team in Russia dedicated to dealing with sanctions-related provisions in contractual documentation with Russia-based parties, as well as various other sanctions-related matters

As of today, we will be able to assist you with the following:

  • Drafting sanctions clauses in contractual documents;
  • Drafting sanctions-related provisions in force-majeure clauses;
  • Identifying sanctioned entities and individuals;
  • Defining the legal meaning of “control” to determine whether sanctions regulations apply.

We hope you find this resource to be useful. We believe it will allow us to be more systematic about sanctions clauses and ensure that we can provide a high level of responsiveness and consistency.

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Focus: Sanctions and Sanctions Clauses

LMIA Exempt Work Permit Applications – New Procedure

Effective February 21, 2015, there will be changes to the work permit application process for categories that are currently exempt from obtaining a Labour Market Impact Assessment (LMIA) and employer specific. The changes follow amendments to the Immigration and Refugee Protection Regulations focused on employer compliance in the employment of foreign workers.

As a result of the regulatory amendments, most work permit applications will now require a 2 step process:

Step 1. Either an LMIA application to Service Canada OR a new procedure involving an application form to be submitted to Citizenship and Immigration Canada (CIC) for LMIA exempt categories (Form IMM 5802 – Offer of Employment to a Labour Market Impact Assessment Exempt Foreign National) with an additional $230 employer compliance fee.

Step 2. Work permit application.

This new procedure is applicable to all LMIA exempt work permits that are employer specific including work permit extension applications, visa office applications, port of entry applications. The new procedure will apply to most LMIA exempt work permit applications including work permits under NAFTA, intra-company transfers, PNPs, signficant benefit, etc. (Note: step 1 is not required for open work permit applicants, however, open work permits will be subject to an additional $100 privilege fee).

The new IMM 5802 Form and online fee payment (through their current CIC online fee payment site) will be available on Wednesday, February 18, 2015. The new form will require general corporate information about the employer (including contact information), the terms of the offer, information supporting the LMIA exemption and an attestation by the employer on the terms of the offer of employment.

Third party representatives will be able to submit the IMM 5802 Form for employers as long as the employer contact has signed a Use of Rep form (IMM 5476). The process requires that the IMM 5802 be completed by employers and submitted with the $230 payment to CIC.

Once the IMM 5802 Form is submitted to CIC, a confirmation will be generated by CIC. This confirmation along with a copy of the IMM 5802 Form and the $230 fee payment must be provided to the foreign worker to make an application for a work permit (i.e. at the visa office, online or at POE etc.)

There is not an advance “adjudication process” for the IMM 5802 Form before the work permit application is processed. For example, although proof that the IMM 5802 Form was submitted is required for an applicant to apply for a work permit at the POE, it was indicated that this could be done 5 minutes prior to arriving at the port of entry, as long as the applicant had a copy of the submitted IMM 5802 Form and payment confirmation with their work permit application.

There will also be a process for receiving a refund of the $230 employer compliance fee (and $100 privilege fee) if a work permit application is refused

More information will be posted by CIC this week and the link to the CIC site can be found at: http://www.cic.gc.ca/english/resources/tools/temp/work/admissibility/specific.asp

If you have any questions, please do not hesitate to contact us.

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LMIA Exempt Work Permit Applications – New Procedure

New year, new employment issues

Global_Employment_Lawyer_Winter_2015

The mission of Dentons’ Global Employment Lawyer is to keep you informed of significant trends and developments in the area of global employment and labor law, wherever they take place, so that you are in a better position to make educated business decisions. Thank you for helping to make the first edition of the Global Employment Lawyer a huge success!

In this second edition of the Dentons’ Global Employment Lawyer, our lawyers examine:

  • Options for dealing with employee layoffs in China for foreign investors
  • Canada’s recent decision to require employee accommodation for childcare responsibilities
  • Restrictions under Polish law which can affect employment settlements
  • Romania’s recent decisions effecting union standing and disciplinary actions against employees
  • Specific ambiguities in Egyptian labor law on financial entitlements, employment terminations and collective dispute resolution mechanisms
  • UK’s recent employment decision potentially increasing the amount of holiday pay owed to certain overtime workers
  • Current and pending changes to US employment regulations for 2015, including laws affecting paid sick leave, anti discrimination and bullying, social media, severance and more
  • US IRS regulation Section 457A’s effect on deferred compensation for US taxpayers who work for non-US entities
  • Recap of Dentons’ client seminar on critical employment issues for multinationals

Read the complete issue

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New year, new employment issues

Global Mobility Guide

 

Global Mobility Guide

We are so pleased to bring you the Dentons Global Mobility Guide 2015.

The ability to move skilled workers globally is essential to the success of the world economy and the companies that drive it.

“Global mobility” minimizes the risks for doing business internationally by providing the legal framework to identify and analyze business problems, and develop and implement creative solutions. Getting it right means getting people to the right place at the right time with the right advice.

The laws impacting global mobility are dynamic. Multinational employers need to know the existing laws and the evolving legal trends to compete in an international market where business transcends borders. Dentons professionals can provide that.

Our Global Mobility practice helps multinational employers navigate the local laws of the countries where they do business, with lawyers speaking the local language in more than 75 locations around the world, well-versed in all of the intertwined issues: immigration, employment, compensation, employee benefits, taxation and social insurance.

Dentons’ network of offices and qualified staff around the world provides you with experienced legal resources—wherever and whenever you need us.

Read the complete report

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Global Mobility Guide

Permit Me to Explain – Work Permits and LMIAs for Foreign Actors

Media-(ThinkStock)

As much as we Canadians (justifiably) boast about our homegrown talent, there is no hiding the fact that to maximize the quality of our music, TV, and film we sometimes need an assist from outside our borders.  For instance, you are a producer of a multimillion dollar film shooting in Canada and want to hire a specific non-Canadian actor to play the sister of the film’s protagonist: can you simply hire the performer?  Like many legal questions, the answer is (unfortunately) “it depends.”

When attempting to determine whether an employer may hire a foreign performer, the first question to be asked is what type of performer are they?  Some categories of performers need to obtain a work permit prior to performing in Canada[1]; other categories of performers, set out in Section 186 of the Regulations to the Immigration and Refugee Protection Act (the “Regulations”), are exempt from the requirement. On June 20, 2014, amendments were made to the Regulations, which revised the list of performers in the “exempt” category.  The list of exempt non-Canadian performers includes:

  •  musicians in a band performing several tour dates in Canada;
  • guest conductors and artists performing with Canadian productions or groups for a few performances;
  • actors in foreign touring theatrical productions;
  • professional wrestlers and circus performers in foreign touring productions;
  • musicians and buskers coming to Canada to perform in festivals;
  • support crew and other workers who are integral to a live production; and
  • disc jockeys coming to Canada to work at private events, festivals, concerts and fairs.[2]

Setting aside the (puzzling) grouping of professional wrestlers with circus performers, producers and their counsel will note the continued omission of film and television actors from this list; something emphasized by section 186(g) of the Regulations which includes the wording:

A foreign national may work in Canada without a work permit as a performing artist appearing alone or in a group in an artistic performance – other than a performance that is primarily for a film production or a television or radio broadcast.[3] [Emphasis Added]

So, at this point we know that any non-Canadian actor participating in any film or TV production will be classification as a temporary foreign worker (“TFWs”) and must obtain a work permit.  The work permit allows TFWs to work in Canada to perform a specific service for a designated employer for a defined period of time.  To obtain a work permit, performers may apply at a Citizen and Immigration Canada visa office[4] or at a Canadian port of entry (in the case of citizens of contiguous states).  So, is a work permit all that is required for producers to hire a non-Canadian actor?  Yet again, the answer is “it depends.”  The producer may, in addition to obtaining a work permit for the actor, be obliged to complete a Labour Market Impact Assessment (“LMIA”).  Whether an LMIA is required is dictated by (a) whether the performance is for (i) film; or (ii) TV; and (b) whether or not the production is a Canadian co-production.

If the performer is being brought into Canada to perform in a certified Canadian co-produced film (i.e. commonly referred to as a “treaty co-production”)[5] [6], then the producer of the film is not required to complete an LMIA.  For non-Canadian performers appearing on a (a) film; or (b) TV series, that is not a Canadian co-production, then an LMIA will be required in order to determine whether a work permit will be granted (and the length of the work permit).  The LMIA is performed by Employment and Social Development Canada (“ESDC”)[7] and is meant to evaluate whether the employment of the non-Canadian performer is likely to have a positive or negative effect on the Canadian labour market.  To commence the LMIA process, the producer submits a completed LMIA[8] [9] to Service Canada.  Employers may also create an account with the TFW Web Service[10] which allows them to submit their LMIA application online and monitor its ongoing status.

When it comes to television series, the situation is less clear. There is some ambiguity in the wording on the ESDC website: the wording specifically mentions an LMIA exemption for “actors and workers on a film co-production between Canada and a foreign country”[11]; but elsewhere on the same page, reference is made to “film” and “television”, hinting that the absence of “television” in the description of the LMIA exemption indicates a deliberate intention to not include television co-productions as being eligible for the LMIA exemption.  However, producers we have spoken to have relayed that, as a practical matter, they have qualified for this LMIA exemption for Canadian co-produced television productions.  Producers seeking to utilize this exemption may wish to submit a LMIA exemption request to Service Canada who will provide the producer with an opinion as to whether they qualify.[12]

At some point along the way, the budget-conscious producer (i.e. any producer) reading this article must be wondering about costs.  The June 20, 2014 amendments previously mentioned increased the LMIA application fee from $275 to $1,000.  Despite this over 350% increase, likely of greater significance is that the June 20th amendments increased the processing time for LMIA applications.[13]  The ESDC website currently states that LMIA applications will be processed within 10 business days.  This could potentially be problematic for producers who find themselves in a situation whereby the casting of a performer takes place less than two weeks prior to that performer’s first day of principal photography.  Concern may be further magnified if the performer is needed for pre-production activities.

Apprehensive that this processing time may harm productions in Canada, in mid-July members of the film and TV community met with federal immigration Minister Chris Alexander.  It was reported that during this meeting Minister Alexander gave assurances that film and TV productions facing time constraints would receive quick and efficient services in regard to their LMIA applications.  Speaking with colleagues, and barring some initial hiccups, Mr. Alexander has seemingly been good to his word.  Despite a 10 business day processing period, those administering the LMIA application process appear cognizant of the time sensitive nature of film and TV productions.

Although there is reason to expect continued expedient LMIA application processing, producers who are required to complete an LMIA should remain mindful of the 10 business day timeline.  When completing one’s LMIA application[14] careful attention should be given to box 4 on page 3 entitled “Expected employment start date”.  Producers would be wise to give themselves flexibility.  Performers at one time not considered necessary for pre-production may later be needed prior to principal photography or perhaps shooting schedules may change such that Actor #8 is now an “SW”[15] on the Day 2 call sheet as opposed to Day 6.  As unforeseen events are inevitable during the production process, when completing box 4 producers should ensure that either (a) they are 100% certain the performer is not needed any earlier than the start day written on the LMIA; or (b) give themselves some flexibility in choosing a date in order to provide for unpredicted delays or changes in schedules.

 

Summary of Requirements for Different types of Performers

Type of Performer

Work Permit Required

LMIA Required

Actor in Film (Canadian co-production)

Yes

No

Actor in Film (Not Canadian co-production)

Yes

Yes

Actor in TV Series (Canadian co-production)

Yes

ESDC wording is unclear, but we hear they are treated like film actors

Actor in TV Series (Not Canadian co-production)

Yes

Yes

[Many thanks to articling student Ben Iscoe for his invaluable assistance in researching and writing this post.]

[1] Immigration and Refugee Protections Regulations <http://laws-lois.justice.gc.ca/eng/regulations/SOR-2002-227/>.  See section 8(1) A foreign national may not enter Canada to work without first obtaining a work permit.  See also section 8(2) which states [s]ubsection (1) does not apply to a foreign national who is authorized under section 186 to work in Canada without a work permit.  Provisions of section 186 to be discussed.

[2] Employment and Social Development Canada <http://www.esdc.gc.ca/eng/jobs/foreign_workers/higher_skilled/film//index.shtml>.

[3] See Section 186(g) of the Regulation to the Immigration and Refugee Protection Act <http://laws-lois.justice.gc.ca/eng/regulations/SOR-2002-227/>.

[4] Citizen and Immigration Canada Offices <http://www.cic.gc.ca/english/information/offices/index.asp>.

[5] A co-production appears to need Telefilm certification to qualify for the exemption.  For more information on Telefilm certification, visit “http://www.telefilm.ca/en/coproductions/coproductions/guidelines”.  Once certified, for assistance bringing performers into Canada to work on the co-production, visit “http://www.telefilm.ca/document/en/04/ProcedureImmigrationversionanglaise.pdf”.   This latter link provides helpful guidance; including offering a template letter that will may be used by Telefilm if Canadian authorities contact them to confirm information.

[6] Citizen and Immigration Canada does not define “film.”  A feature length live action production seems to be the template format, but for other formats (e.g. episodic television series, movie of the week, short film, animated film, etc.) a producer will likely have to submit a LIMA exemption request.  For information on submitting a request see “http://www.cic.gc.ca/english/work/employers/lmo-basics.asp”.

[7] Employment and Social Development Canada <http://www.esdc.gc.ca/eng/home.shtml>.

[8] The LMIA form may be found on the Employment and Social Development Canada website <http://www.servicecanada.gc.ca/eforms/forms/esdc-emp5517(2014-11-019)e.pdf>.

[9] Please note that “[e]mployers in the Film and Entertainment sector are exempt from the recruitment and advertisement requirements.”  Employment and Social Development Canada <http://www.esdc.gc.ca/eng/jobs/foreign_workers/higher_skilled/film/index.shtml>; see “Recruitment and Advertisement” tab.

[10] Employment and Social Development Canada <http://www.servicecanada.gc.ca/eforms/forms/esdc-emp5536(2014-01-003)e.pdf>.

[11] Employment and Social Development Canada <http://www.esdc.gc.ca/eng/jobs/foreign_workers/higher_skilled/film//index.shtml>.

[12] For information on submitting a request see “http://www.cic.gc.ca/english/work/employers/lmo-basics.asp”.

[13] Mas, Susana.  “Temporary Foreign Workers: Film, TV industry assured timely permits.”  CBC.ca. July 18, 2014 <http://www.cbc.ca/news/politics/temporary-foreign-workers-film-tv-industry-assured-timely-permits-1.2710488>.

[14] A link to the LMIA form may be found under footnote 8.

[15] An acronym standing for “Start Work” and indicates the performer’s first day of principal photography.

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Permit Me to Explain – Work Permits and LMIAs for Foreign Actors

Critical employment issues facing multi-national employers

trade-customs1

Last week Dentons held its program on employment issues facing multi-national companies. For your convenience, the program can be viewed in it’s entirety by visiting the event page.

Dentons event

If you are interested in receiving additional information on Dentons’ Employment practice and/or have topic suggestions for future seminars, please contact Jennifer Gonzales-Frisbie, Business Development Manager, at jennifer.gonzales‑frisbie@dentons.com.

We hope to see you at our next program.

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Critical employment issues facing multi-national employers