Bill 18, the Stronger Workplace for a Stronger Economy Act, 2014, which received royal assent on November 20, 2014, introduced significant changes to key provisions of the Employment Standards Act, 2000 (ESA). Bill 18 also introduced amendments to other employment related statutes including to the Occupational Health and Safety Act and the Workplace Safety and Insurance Act. The changes will have a significant impact on employers including the potential for increased liability in cases of non compliance. Several of these changes are being phased in and several are already in effect. Key dates are highlighted in this summary. During this transition period, charities and NPOs are well advised to review their existing practices to ensure compliance with all statutory requirements.
Summary of Key Changes to the ESA
Temporary Help Agencies and Clients
Bill 18 introduced several key changes to the temporary help agency provisions of the Act. These changes come into force on November 20, 2015. In addition to an expansion of the record keeping and maintenance obligations of client organizations (i.e., the charity or NPO), the amendments also widen the scope of liability in cases where an employee of a temporary help agency is not paid his or her wages. Specifically, the ESA will now provide that a client of a temporary help agency can be held jointly and severally liable for outstanding wages owed to an assignment employee by the temporary help agency. For purposes of the new "joint and several" liability provisions, "wages" includes regular wages earned, overtime pay, public holiday pay and premium pay all earned during the relevant pay period.
Further, after the effective date, an employee of a temporary help agency will be able to pursue a claim for unpaid wages against the client even if the worker has not exhausted his/her options with the temporary help agency under the ESA. For the purposes of such a claim, the client of the temporary help agency will be deemed to be the employer of the worker. Employment standards officers (ESOs) can also issue orders against clients of the agency to enforce their liability.
No Maximum on Amount of Recovery and Retroactivity Extended
Effective February 20, 2015, the $10,000 cap on the recovery of unpaid wages as it relates to wages that became due after February 20, 2015 will be repealed. The $10,000 cap will remain for all wages that became due before November 20, 2014 and that exception will be removed from the legislation on February 20, 2017.
The time limits on recovery of wages were also amended. Effective February 20, 2015, an employee will be able to recover wages that became due up to two years (amended from six, and in some cases twelve, months) before the employee's complaint was filed or, in the case of an inspection, before the employment standards officer commenced the inspection. Notably, the new two-year recovery period will not apply to wages owing prior to February 20, 2015.
Under this new regime, the potential liability for employers who are found to have violated the ESA provisions relating to wages will be significantly higher.
Self-audits for Employers
The ESA now empowers an ESO to order an employer to conduct a "self-audit" upon written notice and to report any findings of that self-audit process as requested to the ESO.
If, for instance, a charity or NPO identifies non-wage related contraventions of the ESA during a self-audit, the organization is required to advise the ESO of the steps that it has taken or will take to comply with the ESA. The ESO may still issue an order to pay wages or direct compliance with the ESA if the ESO believes it is appropriate to do so in the circumstances. Significantly, even if the charity or NPO reports that it is in compliance with the ESA, the ESO can still conduct an inspection or investigation of the workplace to determine whether or not the employer has complied with the ESA.
These self-audit provisions come into force on May 20, 2015.
In addition to posting the Ministry of Labour's most recent published poster in at least one conspicuous place at the workplace, employers will now be required to also provide each employee with a copy of the poster within 30 days of an individual being hired, or, for existing employees, within 30 days of May 20, 2015 (the date upon which changes regarding poster requirements come into force).
Indexing of Minimum Wage
The prescribed minimum wage rates will remain in place until September 30, 2015. Thereafter, the minimum wage rates will be adjusted in line with the Consumer Price Index of Ontario and in no case will there be a decrease in the minimum wage rates as a result of applying the new formula.
Occupational Health and Safety Act ("OHSA")
As a result of Bill 18, the definition of "worker" for purposes of OHSA is now amended to include various unpaid individuals, including, but not limited to:
- a secondary school student performing work or services under a school board authorized work experience programme; and
- a person performing work or services under a college, university, or other post-secondary institution approved programme.
Workplace Safety and Insurance Act, 1997 ("WSIA")
If a temporary help agency worker is injured while working for an agency client, Bill 18 provides a mechanism to allocate the injury and accident costs to the client. The wages paid by the temporary help agency to the worker for work performed for the client would be deemed to be paid by the client. The client must notify the Workplace Safety and Insurance Board of the injury. The client will have access to certain records that are normally provided to the employer.
Charities and NPOs are cautioned to pay strict attention to their obligations under these Acts. In some cases, failure to comply with such obligations gives rise to a strict liability offence for the directors of non-compliant organizations.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.