Tuesday, 12 December 2017

Bill 148 and Changes to the Employment Standards Act, 2000

(c) istock/JHVEPhoto

On November 22, 2017, the Ontario Government passed Bill 148, the Fair Workplaces, Better Jobs Act, 2017, S.O. 2017 C.22. The Bill received Royal Assent on November 27, 2017.

The Bill amends several statutes:

  • Colleges Collective Bargaining Act
  • Crown Employees Collective Bargaining Act, 1993
  • Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others), 2009
  • Employment Standards Act, 2000
  • Labour Relations Act, 1995
  • Occupational Health and Safety Act
  • Public Sector Dispute Resolution Act, 1997
  • Public Sector Labour Relations Transition Act, 1997
  • School Boards Collective Bargaining Act, 2014

The post will focus primarily on the Employment Standards Act, 2000 and the implications to Ontario employment law, rather than labour law.

Minimum Wage Increase

Effective Date: January 1, 2018.

Section 23.1 (Determination of minimum wage) is amended to increase the minimum wage for most workers on January 1, 2018, to $14.00 an hour.

The following other wages apply as of January 1, 2018:

  • For employees who are students under 18 years of age, if the student’s weekly hours do not exceed 28 hours or if the student is employed during a school holiday, $13.15 per hour.
  • For employees who, as a regular part of their employment, serve liquor directly to customers, guests, members or patrons in premises for which a licence or permit has been issued under the Liquor Licence Act and who regularly receive tips or other gratuities from their work, $12.20 per hour.
  • For the services of hunting and fishing guides, $70.00 for less than five consecutive hours in a day and $140 for five or more hours in a day, whether or not the hours are consecutive.
  • For employees who are homeworkers, $15.40 per hour.

The minimum wage increases again on January 1, 2019, to $15.00 an hour for most workers.

The following other wages apply as of January 1, 2019:

  • For employees who are students under 18 years of age, if the student’s weekly hours do not exceed 28 hours or if the student is employed during a school holiday, $14.10 per hour.
  • For employees who, as a regular part of their employment, serve liquor directly to customers, guests, members or patrons in premises for which a licence or permit has been issued under the Liquor Licence Act and who regularly receive tips or other gratuities from their work, $13.05 per hour.
  • For the services of hunting and fishing guides, $75.00 for less than five consecutive hours in a day and $150 for five or more hours in a day, whether or not the hours are consecutive.
  • For employees who are homeworkers, $16.50 per hour.

Minimum wage will be subject to an annual inflation adjustment on October 1 of every year starting in 2019. The minimum wage for employees who serve liquor now applies only if the employee also regularly receives tips or other gratuities from their work.

Changes to Overtime Pay

Part VIII (Overtime Pay) is amended to establish a rule for overtime pay for employees who have two or more regular rates for work performed for the same employer. Further detail is beyond the scope of a simple blog post, contact me for more information if this provision may apply to you.

Vacation With Pay

Effective Date: January 1, 2018.

Part XI (Vacation With Pay) is amended to provide a minimum of three weeks of vacation entitlement to employees whose period of employment is five years or more, beginning after the end of the employee’s vacation entitlement year.

For a deeper dive into this subject, see my post: Enhanced Vacation Entitlements After Five Years – What Counts as Five Years?

Holiday Pay

Effective Date: January 1, 2018.

Part X (Public Holidays) is amended. The rules for the calculation of public holiday pay under section 24 are amended to be based on the number of days actually worked in the pay period immediately preceding the public holiday. Sections 27, 28, 29 and 30 are amended to require an employer to provide an employee with a written statement that sets out certain information when a day is substituted for a public holiday.

Previously, holiday pay was calculated by taking the amount the employee had earned in the four weeks before the work week in which the statutory holiday occurred, and dividing that figure by 20. Effective January 1, 2018, however, the amount will be calculated by taking the amount of wages the employee earned in the previous pay period and dividing it by the number of days that the individual worked in that period. This change will lead to more pay for employees who only work a few days per week.

Mischaracterization of Independent Contractors

Effective Date: November 27, 2017.

New section 5.1 prohibits employers from treating, for the purposes of the Employment Standards Act, a worker who is their employee as if the person were not an employee under the Act.

The actual text of that section will read as follows:

5.1 (1) An employer shall not treat, for the purposes of this Act, a person who is an employee of the employer as if the person were not an employee under this Act.

Onus of proof

(2) Subject to subsection 122 (4), if, during the course of an employment standards officer’s investigation or inspection or in any proceeding under this Act, other than a prosecution, an employer or alleged employer claims that a person is not an employee, the burden of proof that the person is not an employee lies upon the employer or alleged employer.

As of the date of this post, I cannot see any prescribed penalty for a violation of section 5.1. The most important impact of this new section will be a shifting of the onus onto employers to demonstrate that a worker is truly an independent contractor and not an employee.

Unpaid Interns

While we’re talking about the mischaracterization of workers, let’s talk about unpaid interns.

Clause (c) of the definition of “employee” in subsection 1 (1) of the Act is repealed and the following substituted:

(c) a person who receives training from a person who is an employer, if the skill in which the person is being trained is a skill used by the employer’s employees

The previous definition excluded from ESA coverage workers receiving training from a non-educational institution when six factors were present – see my post Unpaid Internships, now woefully out of date.

Now, a person receiving “training” is an “employee”, unless the training is in accordance with an approved post-secondary program. Essentially, unless the person is in a co-op program, pay them. On this point see my post, Opportunities Look A Lot Like Hard Work.

Equal Pay for Equal Work

Effective Date: April 1, 2018.

Part XII (Equal Pay for Equal Work) is amended to add four new provisions:

  1. A definition is added that provides that “substantially the same” means “substantially the same but not necessarily identical”.
  2. The Part is amended to provide for an entitlement for equal pay from an employer regardless of a difference in employment status.
  3. An entitlement for equal pay for assignment employees of a temporary help agency who perform substantially the same work as an employee of the temporary help agency’s client is created.
  4. Finally, new section 42.3 requires that the Minister cause a review of the new entitlements.

Essentially, what these changes do is ensure that part-time, temporary and seasonal workers will be entitled to be paid the same as full-time employees when performing “substantially the same” job for the same employer.

Distinctions in the rate of pay will only be allowed if they are based on a seniority system, a merit system, quantity/quality of production, or some other “objective factor”.

Related amendments are made to the reprisal provisions in the Act to prohibit reprisals against employees who make inquiries about rates of pay or who disclose their rate of pay for the purpose of determining or assisting in determining whether an employer is complying with Part XII. What these changes mean is that employers can likely no longer prohibit employees from discussing their wage rates.

Leaves of Absence

The entitlement to six weeks pregnancy leave in certain circumstances is increased to 12 weeks. Section 48 is amended to provide that a parental leave may begin no later than 78 weeks after the child is born or comes into the employee’s custody, care and control for the first time. The entitlement to parental leave is increased from 35 weeks to 61 weeks for employees who take pregnancy leave, and from 37 weeks to 63 weeks otherwise.

The entitlement to family medical leave is increased from up to eight weeks to up to 28 weeks. Currently, an employee may take leave to provide care and support to their critically ill child; new section 49.4 provides that an employee is entitled to take leave to provide care and support to any critically ill family member.

New section 49.5 establishes an entitlement to up to 104 weeks of unpaid leave if a child of the employee dies for any reason, instead of the current entitlement to leave only in the event of a crime-related child death. New section 49.6 retains the entitlement to crime-related child disappearance leave but increases the entitlement from up to 52 weeks to up to 104 weeks.

New section 49.7 (Domestic or Sexual Violence Leave) provides that an employee who has been employed by an employer for at least 13 consecutive weeks is entitled to up to 10 days and up to 15 weeks of leave if the employee or a child of the employee experiences domestic or sexual violence or the threat of domestic or sexual violence. The first five days of leave are to be paid. The leave must be taken for any of the purposes listed in the section.

Section 50 (Personal Emergency Leave) is amended to provide personal emergency leave to all employees, not just employees of employers who regularly employ 50 or more employees. In addition, two days of personal emergency leave are now required to be paid days, if the employee has been employed by the employer for one week or longer. The paid days have to be taken before any unpaid days of personal emergency leave in a calendar year. Employers retain the right to require evidence of entitlement to these days but are not permitted to require a certificate from a qualified health practitioner, i.e. no doctor’s notes can be requested.

For a deeper dive on the subject of personal emergency leave, see my post The Statutory Right to Paid Sick Leave and What Constitutes “Evidence Reasonable in the Circumstances”

New Rule Governing Requests for Changes to Schedule or Work Location

Effective Date: January 1, 2019.

Tenure Requirement: Employee must have 3 months of employment.

New Part VII.1 (Requests for Changes to Schedule or Work Location) adds an ability for employees to request changes to their schedule or work location. Employers who receive these requests must discuss them with the employee and either grant them or provide reasons for a denial.

New Rules Governing Scheduling

Effective Date: January 1, 2019.

New Part VII.2 (Scheduling) sets out new scheduling provisions. These include:

  • a minimum of three hours’ “wages” for shifts that are under three hours;
  • minimum pay for being on call;
  • a right to refuse requests or demands to work on a day that an employee is not scheduled to work with insufficient notice (less than 96 hours); and
  • entitlement to pay for three hours of work in the event of cancellation with insufficient notice (less than 48 hours).

The term “wages” is defined as the greater of (a) 3 hours of pay at the employee’s regular rate; or (b) the amount the employee earned while working plus the remaining time calculated at the employee’s regular rate.

The “on call” requirement does not apply to employees who deliver essential public services or to employees on call who were not required to work.

As of January 1, 2019, employers will be required to keep records of the dates and times employees were scheduled to work or be on call and any changes made to that schedule.

Enforcement

The requirement in section 96.1 (Steps required before complaint assigned) for a complainant to take steps specified by the Director before the Director assigns a complaint for investigation is repealed.

As Professor David Doorey explains on his blog Law Of Work in the post My Review of Bill 148 ESA Reforms (With Just a Little Snarky Commentary):

Let’s start with the repeal of one of the stupidest employment laws I’ve ever come across (and there have been a lot of stupid ones in my days!). Bill 148 repeals Section 96.1 of the ESA, which discouraged employees (and ex-employees) from filing complaints by setting up a system that required them to first confront the employer with the allegation that the employer is breaking the law and then wait for a response from the employer. The employee then had to demonstrate the Director of employment standards that the steps were taken, otherwise the Director would not assign a complaint to an employment standards officer.

I criticized this law way back in 2010 when it was first enacted in this post fittingly entitled “When Did Discouraging Workers from Filing ESA Complaints Become Public Policy in Ontario?”. The Liberals argued that the law would encourage settlement of complaints before they became complaints. The cynic in me argued that the real purpose was to reduce the number of new complaints coming in order to address the large backlog of cases. Anyways, kudos to the Liberals for recognizing that a law they passed was bad policy and for doing away with it in Bill 148.

Enough said.

Subsection 103 (1) (Order to pay wages) is amended to allow employment standards officers to order employers to pay wages directly to employees, rather than to the Ministry. Similar amendments are made to other order-making powers.

Section 113 (Notice of contravention) is amended to provide that the penalties for contraventions shall be determined in accordance with the regulations, which permit the establishment of a penalty range or of different penalties that apply to individuals and to corporations. Employment standards officers are given the discretion to determine a penalty within the range in accordance with the prescribed criteria, if any. New provisions are added to authorize the Director to publish information related to a deemed contravention of the Act following the issuance of a notice of contravention.

New provisions are added to Part XXIV (Collection) to allow the Director to accept security for amounts owing under the Act, issue warrants to collect money pursuant to an order under the Act or register a lien respecting money owed pursuant to an order under the Act. These powers may be delegated to collectors. The Director and the collectors may disclose information to each other for the purpose of collecting an amount payable under the Act.

Subsection 88 (5) (Interest) is amended to allow the Director of Employment Standards to calculate rates of interest for amounts owing under different provisions of the Act or the regulations and for money held by the Director in trust.

Contact Me

Sean P. Bawden is a partner with Kelly Santini LLP, located in Ottawa, Ontario, Canada. He practices in the areas of employment law and civil litigation. He has also taught Trial Advocacy for Paralegals and Small Claims Court Practice at Algonquin College in Ottawa.

To reach Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

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