New Year, New Employment Laws: Bill 148 – Better Jobs Act, 2017

New Year, New Employment Laws: Bill 148 – Better Jobs Act, 2017

The Fair Workplaces, Better Jobs Act, 2017 colloquially known as Bill 148, was passed in November, 2017 as part of the provincial government’s efforts to create more opportunity and security for workers in our evolving economy. These recent reforms are currently reshaping the employment and labour law landscape in Ontario.

Background

The Fair Workplaces, Better Jobs Act was first introduced on June 1, 2017 and responds to the final report of the Changing Workplaces Review - the first-ever independent review of both the Employment Standards Act, 2000 and Labour Relations Act, 1995. The report estimated that more the 30 per cent of Ontario workers were in precarious work in 2014 and provided recommendations aimed at creating better working conditions in Ontario (the full report is available online here: The Changing Workplaces Review - Final Report).

The Fair Workplaces, Better Jobs Act makes a number of changes to the Employment Standards Act, 2000, the Labour Relations Act, 1995, and the Occupational Health and Safety Act. Some of the most notable changes that apply to non-unionized employees are as follows:

Minimum Wage Increase

The new legislation increases Ontario’s general minimum wage from $11.60 per hour to $14.00 per hour on January 1, 2018 and then to $15.00 per hour on January 1, 2019. Special minimum wage rates will remain but will increase by the same percentage as the general minimum wage for liquor servers, students under 18, hunting and finishing guides and home-workers (i.e. employees who do paid work in their own home for an employer).

Equal Pay for Casual, Part-Time, Temporary and Seasonal Employees

The new equal pay provisions aim to implement a general rule that no employee may be paid less than what is paid to full-time employees of the same employer who perform the same job.

On April 1, 2018 casual, part-time, temporary and seasonal employees will be entitled to be paid equally to full-time employees who are doing the “substantially same” work.

Employees will have the right to request a review of their rate of pay if they believe that they are not receiving the same rate of pay as full-time/permanent employees who perform substantially the same work. The employer will have to respond by either adjusting the employee’s pay or by giving the employee a written explanation of the differential.

Employers will be exempt from the new equal pay for equal work rules if the wage difference is based on (a) a seniority system, (b) a merit system, (c) a system that measures earnings by quantity or quality of production, or (d) some other objective factor other than sex or employment status.  

Notice Requirements for Temporary Help Agencies

As of January 1, 2018, temporary help 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. If the temporary help agency gives less than one week's notice, they must pay the wages the employee would have been entitled to receive had one week’s notice been given.

However, the temporary help agency is not required to give notice or pay in lieu if it offers the employee another assignment that is reasonable and lasts at least one week. Further, agencies do not have to provide notice or pay in lieu of notice if there is wilful misconduct by the assignment employee, an unforeseeable event that makes it impossible to perform the assignment or the assignment is terminated because of a strike or lock-out at the location of the assignment.

New Scheduling Rules

The new legislation sets out new scheduling rules that come into effect on January 1, 2019:

• Employees will have the right to request schedule or location changes after having been employed for three months, without fear of reprisal.
• Employees, who regularly work more than three hours per day but upon reporting to work are given less than three hours, must be paid for three hours of work at their regular rate of pay (as opposed to the minimum wage rate required by the current 3-hour reporting rule).
• Employees can refuse to accept shifts or refuse being placed “on call” without reprisal if their employer asks them to work with less than 96 hours' (4 days) notice.
• If a shift is cancelled within 48 hours of its start, employees must be paid three hours at their regular rate of pay. This obligation would also apply if an employee is scheduled to be “on call” but that status is cancelled within the same 48-hour window.
• When employees are "on-call" and not called in to work or work less than three hours, they must be paid for three hours of work. This will be required for each 24 hour period that employees are on-call.
• Employers will be required to a keep record of the dates and times employees were scheduled to work or be on call and any changes made to the schedule.

There are a number of exceptions to the new scheduling requirements that reflect a number of situations, including emergencies and ensuring delivery of essential public services.

Vacation and Public Holiday Pay

As of January 1, 2018 vacation entitlement is increase to 3 weeks’ vacation time and 6 per cent vacation pay after 5 years of service with an employer.

There are also several changes to the public holiday provisions of the ESA, including a new formula for the calculation of “public holiday pay” to better ensure that the calculation reflects an employee’s regular wages that they would have earned but for the holiday.

Leaves of Absence

As of December 3, 2017 parental leave is extended from 35 weeks to 61 weeks from employees who have taken pregnancy leave, and from 37 to 63 weeks for employees who have not.

Pregnancy leave is also increased for employees who experience a still birth or miscarriage from 6 to 12 weeks.

As of January 1, 2018 employees are entitled to extended personal emergency leave. The previous legislation gave certain employees the right to take up to 10 days of unpaid, job-protected leave, each calendar year due to illness, injury and other emergencies/ urgent matters. However, these rules only applied to workplaces with 50 or more employees. The new legislation requires all employers to give all employees 10 personal emergency leave days per year, including two paid days if the employee has been employed for one week or longer.

Although Bill 148 does not go as far as to prohibit an employer from asking for a medical note, employers are prohibited from requiring an employee to provide such documentation.

There are a number of other extended and new leave provisions, including:

• New Critical Illness Leave
• New Child Death Leave
• New Paid Domestic or Sexual Violence Leave
• Extended Family Medical Leave
• Extended Crime-Related Child Disappearance Leave

Crackdowns on Employee Misclassification

As on November 27, 2017, employers are prohibited from misclassifying employee. This prohibition is primarily aimed at the misclassification of employees as independent contractors.

If there is a dispute, the employer will have to prove that an individual is not an employee. Therefore, when engaging contractors, employers will want to be sure that they can meet this new onus. By creating a reverse onus on employers, there is more at risk to employers who improperly classify employees as independent contractors.

Prohibition on Footwear with an Elevated Heel

As of November 27, 2017, employers cannot require workers to wear footwear with an elevated heel (for instance, high heels) unless they are needed for the worker’s safety. However, this change to the Occupational Health and Safety Act does not apply to employers of workers in the entertainment and advertising industries.

Enforcement

To enforce these changes, the provincial government is hiring up to 175 employment standards officers and is launching a program to educate both employees and businesses about their rights and obligations under the Employment Standards Act, 2000.

Employers and employees should also note that employees no longer have to show that they attempted to resolve their issue with their employer before proceeding with a complaint under the Employment Standards Act, 2000.

Further, penalties for violations under the ESA have increased and the Director of Employment Standards will be allowed to publish the names of individuals who have been issued a penalty, along with a description of the circumstances leading to the penalty and the amount of the fine.

Conclusion

The enactment of Bill 148 requires employers to undertake a careful review of their employment policies and practices to ensure that they are compliant with the parts of the new legislation that are now in effect.

However, as always, both employees and employers can benefit from familiarizing themselves with their rights and obligations under Ontario’s employment law legislation.

By: Marni Outerbridge