In a previous bulletin, we advised readers of the enactment of Bill
18, the Stronger Workplaces for a Stronger Economy Act,
2014, which introduced significant changes to several
employment-related statutes in Ontario. Some of the changes
introduced by Bill 18 came into force on enactment, while others
are being phased in over time.
Notably, on November 20, 2015, several significant changes to
the temporary help agency provisions of the Employment
Standards Act, 2000 (ESA) will come into force. These changes
widen the scope of liability in cases where an assignment employee
is not paid his or her wages by a temporary help agency and also
impose new record keeping obligations on clients of temporary help
agencies in respect of the assignment employees. The changes
include the following:
Joint and Several Liability. Temporary help
agencies and their clients will be jointly and severally liable for
unpaid wages to assignment employees. Although the temporary help
agency has the primary responsibility for wage payments, assignment
employees can bring a claim for unpaid wages against the client if
the temporary help agency does not meet its obligation to the
employee. For purposes of these new joint and several liability
provisions of the ESA, "wages" includes regular wages,
overtime pay, public holiday pay, and premium pay earned during the
relevant pay period. In the case of multiple assignments in such a
pay period, each client of the temporary help agency may be held
jointly and severally liable with the temporary help agency for a
share of the total wages owed to the employee. For the purposes of
such a claim, the client of the temporary help agency will be
deemed to be the employer of the assignment employee.
Record Keeping. Temporary help agencies and
their clients will now be required to record the number of hours
worked by each assignment employee in each day and each week. These
records must be maintained for three years and be readily available
for inspection. This requirement applies even where the temporary
help agency has retained an external party to maintain and/or
retain such records.
Given these impending changes, employers who utilize the
services of temporary help agencies and assignment employees are
well advised to review their existing practices to ensure
compliance with these new statutory requirements.
The foregoing provides only an overview and does not
constitute legal advice. Readers are cautioned against making any
decisions based on this material alone. Rather, specific legal
advice should be obtained.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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