Changes to Ontario’s Labor and Employment Laws

The Ontario government recently passed Bill 148, the Fair Workplaces, Better Jobs Act, 2017, which will result in significant changes to the labor and employment landscape.

The Act increases protections and basic standards for Ontario workers, especially those identified as being at greater risk. Highlights include an increase to Ontario’s minimum wage; expansion of equal pay provisions; changes to statutory leaves; and numerous rules to help union organizing.

Employment Standards Changes

Minimum Wage

• Increase from $11.40 to $14.00 per hour on January 1, 2018
• Further increase to $15.00 per hour on January 1, 2019

This is the highest profile change in the Act, representing an unparalleled increase for Ontario.

Equal Pay for Equal Work (April 1, 2018)

Employers will be required to pay all employees who perform “substantially the same kind of work” in the same workplace the same wage rates, regardless of employment status (part-time, temporary, assignment, etc.). Previously, employers were prohibited from providing unequal pay based upon gender. With these amendments, employers will now have additional obligations to avoid pay inequalities based upon employment status (i.e., they cannot pay a part-time or temporary employee less than they pay a full-time employee for performing “substantially the same kind of work”) even where comparators are of the same gender.

• Exception: where the wage difference is based upon seniority, merit, or productivity systems.

Scheduling (January 1, 2019)

The Act guarantees three hours’ pay to employees whose shifts are cut short or who were on-call but not called in.

The Act also gives employees the right to refuse shifts offered within 96 hours of the beginning of the shift and the right to request schedule/location changes after 3 months with the employer.

Misclassification (In force)

The Act prohibits employers from misclassifying employees as independent contractors and thereby denying these individuals statutory protections.

An employer will have the burden of proof to prove that an individual is not an employee where the individual claims otherwise.

Temporary Help Agencies (January 1, 2018)

Temporary agencies will be required to provide employees one week’s written notice or pay in lieu if an assignment estimated to last three or more months is terminated before the end of its estimated term.

ESA Protected Leaves

The Act will create paid leave obligations, allowing employees two paid days for personal emergencies, as well as five days when experiencing domestic or sexual violence. Employers will be prohibited from requiring medical notes for use of personal emergency leave.

The Act establishes unpaid leave for incidents of child death and has increased allotted leave time for parental leave, pregnancy leave, and leave for crime-related child disappearances. The Act also expands critical illness leave to apply to those caring for adults as well as child dependents.

These changes take effect on January 1, 2018, with the exception of changes to parental and critical illness leaves, which came into force on December 3, 2017.

Additional Changes (January 1, 2018)

• employees with five years of service will be entitled to a minimum of three weeks of paid vacation, up from the current two weeks;
• changes to calculation of overtime and holiday pay;
• lower threshold to prove employers are related and hold them jointly and severally liable for unpaid wages;
• increased record keeping obligations for employers;
• elimination of exclusion from statutory protections for certain job categories;
• faster/easier access for employees to employment standards claim process; and
• more proactive enforcement of employment standards, heightened penalties for non-compliance, and enhanced powers for collection of unpaid amounts

Labor Relations Changes

Union Certification (January 1, 2018)

• Card-based certification introduced for certain industries
• Certification votes can be conducted outside the workplace, including electronically and by telephone
• Unions permitted to access employee lists and contact information if they can show support of 20 percent of employees in a proposed bargaining unit
• Easier access to remedial certification when an employer engages in misconduct
• Addition of intensive first contract mediation-arbitration components to ensure a successful first collective agreement
• Enhanced discretion for Labor Relations Board to restructure bargaining units if considered more appropriate

Employee Protections (January 1, 2018)

The Act will provide additional protections to unionized employees engaged in the process of enforcing collective bargaining rights, such as protection from discipline/discharge during bargaining and greater reinstatement rights after legal work stoppages.

The Act will also enhance penalties on employers violating labor relations protections.

Occupational Health and Safety Changes 

Acceptable Footwear (in force now)

An employer is prohibited from requiring workers from wearing footwear with an elevated heel unless it is required for the worker to perform his or her work safely.

• Exception: performers in the entertainment and advertising industries

Comment

Employers should act quickly to prepare for the coming changes, fully examine the Act, and consider the full potential impact upon their businesses.

Potential changes may include:

• updating documents such as employment contracts and policies;
• reviewing existing practices that no longer comply; and
• conducting training to ensure that management and staff are fully prepared for the new landscape.

Written by Matthew E. McCarthy and Michael Comartin of Ogletree Deakins