Labour and Employment Laws in Ontario are Changing - Bill 148 (The Fair Workplaces and Better Jobs Act 2017)
The Fair Workplaces and Better Jobs Act 2017 (“Bill 148”) received royal assent on November 27th, 2017, significantly altering the labour and employment laws in the province of Ontario. Bill 148 makes amendments to the Employment Standards Act 2000 (the “ESA”), the Labour Relations Act 1995 (the “LRA”) and the Occupational Health and Safety Act (the “OHSA”). Certain amendments have already come into force, while others will come into force leading up to January 1, 2019.
Many of the changes made by the Act are substantial, and as of January 1st the bulk of the changes are effective and in force.
Employers are going to want to review their employment agreements to make sure that they meet the new minimums, or else face possible workplace conflicts, unexpected financial costs, or even legal action.
To help avoid these problems, the following is a convenient summary of the issues and timeline:
Changes to the ESA
As of January 1, 2018, (and in some cases as of November 2017) all of the following changes are in full force and effect:
1. Minimum Wage: The minimum wage is now $14.00 per hour for general employees. Special minimum wage categories still exist and have also been adjusted, some of these include:
· Students under 18 - $13.15/hour
· Liquor Servers (who regularly receive tips) – $12.20/hour
· Homeworkers (110% of general minimum wage) – $15.40/hour
2. Overtime Pay: For employees with two or more regular rates of pay performing overtime, the employee will be entitled to an overtime rate that applies to “the work performed in that hour”, instead of merely being based off their regulate rate.
3. Holidays (Paid vacation and statutory holidays): Paid vacation must now increase to 3 weeks per year following 5 years of service by an employee. In addition, Bill 148 creates a new formula for calculating holiday pay which will entitle employees to be paid holiday pay based on wages which have been paid to the employee in the pay period prior to the holiday, divided by the days the employee worked in that period. The new formula will mean that some employees will receive increased entitlement. Read more here.
4. Independent Contractors: Employers are now prohibited from misclassifying employees as independent contractors and may be subject to penalties and even conviction under the ESA if they fail to comply with this rule. Where a dispute arises in relation to such classification, the employer will bear the onus of proving that the individual is not an employee.
5. Leave of Absence:
· Expanded Personal Emergency Leave: Employers are now required to provide 10 days of emergency leave, 2 days of which will need to be paid. Employees will not be required to provide a doctor’s note to support such leave and Employers are prohibited from requiring them. Read our full review of these changes.
· Extended Family Medical Leave: Family medical leave is now increased to 28 weeks in a 52-week period for employees who have a family member with a serious medical condition which has a significant risk of death within 26 weeks.
· Extended Pregnancy Leave: Employees who experience a still birth or miscarriage are entitled to receive 12 weeks of pregnancy leave.
· Extended Parental Leave: Parental leave is extended to 61 weeks for employees who have taken a pregnancy leave, and to 63 weeks who have not.
· New Child Death Leave: Employees will receive 104 weeks following the death of a child, regardless of whether the death was crime related.
· Extended Crime Related Child Disappearance Leave: Crime Related Child Disappearance Leave will be increased to 104 weeks.
· New Critical Illness Leave: Critically Ill Child Care Leave has been replaced, and employees are now entitled to 37 weeks in a 52-week period to care for a critically ill minor child who is a member of the employee’s family; or 17 weeks in a 52-week period to care for a critically ill adult who is a member of the employee’s family.
· New Paid Domestic Violence or Sexual Violence Leave: Employees that have been employed for at least 13 consecutive weeks will receive up to 10 individual days of leave and up to 15 weeks of job protected leave when they or their child has experienced or is threatened with domestic or sexual violence. The first five days of leave each calendar year would be paid, the rest would be unpaid. Employers are also required to put mechanisms in place to protect the confidentiality of records they receive or produce in relation to an employee taking domestic or sexual violence leave.
6. Temporary Help Agencies: Temp agencies are required to give their employees at least one week's written notice or pay in lieu of notice, if an assignment originally estimated to last three months or longer ends early, though there are exceptions for frustrating circumstances.
7. Enforcement: Employees are now able to proceed with a complaint under the ESA without having to demonstrate that they have tried to resolve an issue with their employer. In the case where an employer is found to have breached employment protection laws the Employment Standard Officers will be able to award interest on unpaid wages, and the Director for Employment Standards will be allowed to publish the names of individuals who have been issued any penalty, including a description of the reason for the penalty and the amount of such. Penalties for violations under the ESA have also increased.
Changes to the OHSA
As of November 27, 2017 employers are prohibited from requiring employees to wear shoes with an elevated heel, unless it is a safety requirement. The provisions will not apply to workers in the entertainment and advertising industry.
Slated Changes to the ESA
The following changes are not yet in force, but should be kept in mind when planning for the business or negotiating employment contracts for the future:
1. Minimum Wage: The minimum wage further increase to $15.00 per hour on January 1, 2019, with different minimums for special employment categories. There will also be yearly increases to the minimum wage based on the Consumer Price Index beginning as of October 2019.
2. Equal Pay for Equal Work: As of April 1, 2018, part-time, seasonal and temporary workers will be entitled to be paid equally to full time employees when preforming “substantially the same” job for the same employer. Distinction in pay rate will only be allowed based on certain factors including, a seniority system, a merit system, quantity and/or quality of production or some other objective factor. This change will also provide employees with the right to have their employer review their wages, and protection from reprisal if they have reason to believe they do not comply with equal pay for equal work.
3. Scheduling Changes:
a. As of January 1, 2019, employees will have the right to request scheduling and/or location changes following 3 months of employment. Employees will be able to refuse shift changes without repercussion if they are made with less than 96 hours notice.
b. Employees will be entitled to be paid 3 hours worth of wage if they have reported to work and their shift last less than 3 hours, if they are on call, or where their shift is cancelled with less than 48 hours notice.
c. “Wages for 3 hours” will be defined as the greater of: 3 hours of pay at the employee’s regular rate of pay; or the sum of: the amount the employee earned while working, plus the remaining time calculated at the employee’s regular rate. Employees preforming essential public services will not be able to rely on the on-call rule.
d. Employers will now be required to keep up to date records of the date and times that employees were scheduled to work or asked to be on call and when any changes are made to scheduling.
With all these changes coming into effect at once, now is the right time to conduct a review employment agreements. In addition to the legal updates, the Ontario government has committed to expanding Employment Standards Services by hiring up to 175 more employment standards officers, with the goal of providing a public education program on the new rules, resolving all claims within 90 days, and inspecting 1 in 10 Ontario workplaces every year. This means that there will be increased frequency and effectiveness of enforcement, and employers would be wise to expect, and be prepared for, a review of their employment conditions in advance.
How Momentum can help you respond to Bill 148:
New Employment Contracts: All employers are encouraged to take the opportunity of these changes to update (or implement their first!) written contracts with employees. Momentum can help you write and introduce the new contracts which comply with the changes.
New Policies and Procedures: Employers will now be required to review their employee policies and practices to ensure they are compliant with the new changes. Momentum can assist you in drafting or reviewing all your documentation to ensure that it has been adequately updated and amended to remain in line with these changes.
The material and information in this article are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this article or its links, or the application of the information to your situation. No person should act or refrain from acting in reliance on any information found in this article. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or Momentum Business Law.