You may recall that we wrote about the Stronger Workplaces for a Stronger Economy Act, 2014 in our July Article regarding Bill 18, proposed by the Liberal government. At that time, the Bill had not yet been passed into law by the Ontario government. But there was certainly persistence on the part of the Provincial government in seeing the Act, and its protections for vulnerable workers, come into play.
The Act received royal assent in November 2014, and with that stamp of approval, amendments to various of the employmentrelated laws and statutes will come into play – some immediately. As a follow-up to our August 2014 article, "Take Note: Proposed Legislation Impacts Employers", we take this opportunity to bring important changes to your attention.
1. Employment Standards Act, 2000 (the "ESA")
- Minimum Wage-Starting October 1, 2015, and continuing on October 1st of each subsequent year, the minimum wage in Ontario (currently $11.00 per hour) will be tied to, and adjusted in accordance with, the Consumer Price Index (the "CPI") for the two preceding calendar years. The minimum wage will not, however, be decreased in the case of a negative change to the CPI. Indexing would begin in October 2015.
- Recovery for Unpaid Wages-Under the current ESA, an employee is limited to seeking recovery for unpaid wages from an employer to a maximum of $10,000.00 and for a period of six (6) months. This monetary limit has been removed by the new legislation, with the new unlimited awards applicable to all awards that become payable after February 20, 2015. In addition, as at February 20, 2015, the time period for which unpaid wages can be recovered shall increase to two (2) years. This amendment may have a significant impact for employers, as employees are able to use the no-cost services of the Ministry of Labour to recover a greater proportion of their lost and unpaid wages in the case of employers who have breached their ESA obligations over an extended period of time, while exposing employers to Orders for potentially greater amounts.
- Self Audits- Effective May 2015, Employment Standards Officers have the authority to order employers to conduct "self audits" of their compliance with the ESA by reviewing their records, practices and policies. The employer is required to report the audit to the Officer for their review and assessment of any violations. If the employer finds a breach of the ESA in respect of the payment of wages it will have to report the names of the employees to whom wages are owed, the amount, and an explanation as to how the amount owing was determined. If a non-wage violation is found, the employer must report on its efforts that it has taken or will take to ensure the ESA is complied with. In either case, the Officer may still issue a compliance order. Regardless of any self-audit results, the Officer can still conduct his/her own investigation of the workplace to determine if the employer is in compliance.
- Temporary Help Agencies and the Loss of the Agency/Client Protection-Effective November 20, 2015, employers who use Temporary Help or Placement Agencies will see a change in their relationship with the placed employee.
- Each of the Temporary Help Agency and the Agency's employer client will be required to maintain records of the number of hours worked by each worker from the Agency who has been assigned or placed with the company. These records must be maintained for three (3) years and be readily available for inspection by the Ministry of Labour.
- Temporary Help Agencies and their clients will be jointly and severally liable to workers for all wages owing. If the worker does not receive payment of his/her wages from the Agency, the employee may make a claim for the unpaid wages (again, in an unlimited amount and owing within the last two (2) years), against the Agency's client. To do so, the employee or worker does not have to first exhaust his/her remedies with the Temporary Help Agency. For this reason, it is important for employers to work with reputable Temp Agencies whom they can trust and rely upon to pay the workers, or negotiate the ability to audit these efforts into their service agreements.
- For the purpose of enforcing the liability now provided for under the ESA, the Agency's client will be deemed to be the EMPLOYER of the placed worker.
- If a worker is placed with more than one client of the Agency, each of the clients will be jointly and severally liable with the Agency for their proportionate share of any wages owing.
- ESA Poster-Employers are required to provide a copy of the Ministry of Labour poster (already posted in workplaces) to each employee within 30 days of their starting work. If an employee requests a copy of the poster in a language other than English, the employer is responsible for checking with the Ministry of Labour to see if there is a version in the language requested by the employee.
2. Occupational Health and Safety Act (the "OHSA")
Effective immediately, the Bill changes the definition of "worker" in the OHSA to include people who are performing work for no compensation, including unpaid interns, trainees and volunteers. This amendment would close what many consider to be a gap in the current legislation when it comes to unpaid individuals. It also extends the requirement for mandatory OHSA training to a broader group of individuals.
3. Employment Protection for Foreign Nationals Act, 2009
Under the Bill, protections already given to live-in caregivers will be extended to other foreign nationals working and looking for work in Ontario pursuant to an immigration or foreign temporary employee program.
4. Workplace Safety and Insurance Act, 1997
The Act proposes and provides various amendments to the WSIA which were summarized in our July 2014 article. These amendments define a Temporary Help Agency as an "employer" who "... primarily engages in the business of lending or hiring out the services of its workers to other employers on a temporary basis for a fee". Under the amended Act, in the event a temporary or assigned worker is injured on the site of "another employer", including the Agency's client, the Governor in Council may make regulations which
- allocate and attribute the costs of the injured worker to the placement employer – being the Agency client where the injury occurs;
- deem the wages paid to the worker by the Temporary Help Agency to be wages paid by the employer/Agency client;
- requiring the Agency client to reporting the injury to WSIB; and
- increasing or decreasing the Agency client's premiums based on the frequency of injuries, accidents or both, including injuries of temporarily placed workers.
While the Act has been amended, the WSIB continues to review and consider the amendments and their application to Temporary Help Agencies. Accordingly, allocations and changes noted above are subject to regulations which may be introduced and later proclamation by the Lieutenant Governor. As a result, there is no change required for injury review, reporting, assessment and cost allocation at this time. Please stay tuned!
At this time, we encourage employers to review their practices and policies, as well as their efforts in risk assessment as they may be impacted by these changes. Regular review of records and policies can help to mitigate against surprises and liability. In particular, employers should review their records in regards to workers placed in their facilities and workplaces through Temporary Help Agencies or internships. As always, our Employment and Labour Group is available to assist you in reviewing and auditing your compliance with all requirements.
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.