“Ontario’s economy, like others around the world, has changed. Work is different and, for many people, increasingly less secure. Many workers struggle to support their families on part-time, contract or minimum-wage work, and many more don’t have access to time off due to illness.”

These words are from a Government of Ontario webpage providing an overview of the Fair Workplaces, Better Jobs Act, 2017, (the Act) which was introduced to address such concerns.  The Act, which has now been proclaimed into law, makes a number of changes to existing acts, such as the Employment Standards Act, 2000 (the ESA), to provide improved rights and protection to workers.

Some of the changes have already come into effect, with many more coming into effect on January 1, 2018.  There are also additional changes that will come into effect on April 1, 2017 and January 1, 2019.  It is important that both employers and employees be aware of the revisions to the law and how they will change their employment relationships. 

Some of the changes introduced by the Act are set out below.

Changes to Minimum Wage

Beginning on January 1, 2018, the minimum wage for most employees in Ontario will be increased to $14/hour.  This will be increased again on January 1, 2019, to $15/hour.  Thereafter, the minimum wage will adjusted annually, on October 1 of each year.  The annual adjustment will be based on a comparison of the Consumer Price Index for the year in question against the Consumer Price Index of the previous year.

There are certain employees for whom a different minimum wage applies (such as liquor servers, hunting and fishing guides and students under 18 years of age), but the minimum wage applicable for such employees will also be increased by approximately the same percentage as the general minimum wage.

Protections for Temporary Employees

The Act introduces some protections for temporary, casual and seasonal employees, to mitigate against the inherently insecure nature of such employment.

One change (which comes into effect on January 1, 2018) provides that an employee of a temporary help agency who is assigned to a client of the agency for an assignment that is intended to last for three months or longer is entitled to one weeks’ notice (or pay in lieu of such notice) if the assignment is terminated early.  The employer may not have to provide the notice, if it offers the employee another reasonable assignment of at least one week, or if there has been willful misconduct by the employee, the assignment ends early due to a strike or lockout at the assignment site, or there is some unforeseeable event that makes it impossible to complete the assignment. 

In addition, beginning on April 1, 2018, employees of a temporary help agency assigned to work at an establishment, and who perform substantially the same work as other (presumably permanent) employees at that establishment will be entitled to receive the same rate of pay as those other employees.  Similar protection will also be extended to employees who work fewer hours, or are temporary, seasonal or casual employees.  The employers will not be permitted to reduce the rate of pay of any employees to comply with this requirement; instead the pay of any underpaid employees will have to be increased to match the rate of pay of the others.  Again, there are exceptions, such as differing rates of pay that exist due to a seniority or merit system, or a system that ties earnings to the production of the employee.  However, an employer who seeks to justify a differential in the rate of pay to different employees performing substantially similar work on such a basis would be well advised to have a specific, written policy in place to demonstrate that they have such a system and to clearly indicate what the parameters of the system are, and will have to apply that policy fairly and evenly across all of the employees in question.

Employee vs. Independent Contractor

Sometimes, a business and a person working for that business will want to agree that the person is not an employee, but rather an independent contractor.  They may do so for a variety of reasons; for example, the employer would be relieved from making EI and CPP contributions in respect to that worker, while the employee could deduct certain expenses from income for tax purposes.  While there have always been potential repercussions where an employer and employee have wrongly characterized an employee as an independent contract, the ESA now specifically prohibits an employer from treating an employee as an independent contractor.  As a result, it is important that when an employer is considering treating a worker as an independent contractor that it give consideration to the factors that are used to determine whether a worker is an employee or an independent contractor, and that it not classify a worker as an independent contractor when the reality is that the worker should be characterized as an employee.

Record Keeping

Changes have been made to require employers to retain additional records in respect to when employees worked or were scheduled to work, and when scheduled work was cancelled.  In addition, employees will be required to maintain records not only about how much vacation pay was paid to an employee, but also how much vacation pay was earned by the employee and how that amount was calculated.   Most of the changes regarding record keeping come into effect on January 1, 2018, but some will not become effective until January 1, 2019.

Scheduling and Work Location

Beginning on January 1, 2019, an employee who has worked for an employer for at least 3 months will be able to make a written request for changes to the employee’s schedule or work location, and the employer will be required to discuss the request with the employee and provide a response within a reasonable time.  Further, if the employer denies the request, in whole or in part, the employer must provide reasons for the denial. 

Also beginning on January 1, 2019, an employee who is scheduled to work for more than 3 hours on an occasion, or who regularly works more than 3 hours a day and is required to attend at work on a given day, and who presents him or herself for work on that day but works less than three hours, will be entitled to receive his or her wages for a three hour period.  Similarly, an employee who is required to be on call to work but is not actually required to perform any work or who works less than three hours will be entitled to be paid wages for three hours.  Even if the employee does not have to attend to be at work or be on call because the employer has cancelled the shift in question, the employer will have to pay the employee 3 hours of wages if the cancellation is made within 48 hours of the shift in question.  In all of these instances, there are exceptions that may relieve employers of the obligation to make such payments, but the employer can no longer simply decide that the employee’s services are not needed for the full time scheduled, or at all, and assume that it is not required to pay the employee for any time greater than the time actually worked.

Changes coming into effect on January 1, 2019 will also permit an employee to refuse to work or to be on call on a day that they were not scheduled to work or be on call, where the employer makes a request or demand that the employee work or be on call less than 96 hours before the shift in question.  There are exceptions to deal with emergencies or essential services, but otherwise the employee can refuse the request or demand.

Vacation

Starting on January 1, 2018, employees who have worked for an employer for 5 years or more (including both active and inactive employment) will be entitled to 3 weeks of vacation time, compared to the 2 weeks that are presently required.  Such employees will also be entitled to an increase in the vacation pay they receive, from 4% of their wages to 6%. Of course, employers and employees who have agreements or policies that provide for greater vacation entitlement than the minimum required by the ESA will not be affected by these changes, but for others, this change needs to be accounted for.

Leaves of Absence

Changes will come into effect on January 1, 2018 that affect the circumstances in which employees are entitled to take a leaves of absence.

With respect to Family Medical Leave, employees will be entitled to take up to 28 weeks of unpaid leave (as opposed to the present 8 weeks) to provide care to certain family members where the family member has a serious medical condition with a significant risk of death occurring within 26 weeks.  The nature of the relationship between the employee and the ill person has also been expanded greatly so that this leave can be taken to care for many individuals who do not fit into a spousal or parentchild relationship.

In addition, the unpaid leave of absence that is now available to parents who have a child under the age of 18 who has died where it was likely that the death was the result of a crime will be expanded to provide that the parents can take this leave of absence when a child under the age of 18 has died, whether or not the death was the result of a crime. 

Changes will also come into effect to permit employees to take a leave of absence to seek assistance where the employee or a child of the employee has suffered, or been threatened with, domestic or sexual violence.

Lastly, the entitlement to Personal Emergency Leave is being expanded; where it was previously only applicable when the employer regularly had 50 or more employees, it is now available to all employees.  Further, while the maximum number of days available for such leave remains at 10 days per calendar year, starting on January 1, 2018, employees will be entitled to pay for the first 2 of those days, whereas previously, all 10 days were unpaid.

There are many other changes introduced by the Act that will affect the nature of employeremployee relationships moving forward.  Both employers and employees should give consideration to the impact of the Act in their dealings.  We at Iler Campbell LLP are well versed in providing advice to employers and employees regarding all employment issues and would be pleased to assist you with such issues.

Filed in: Employment Law