On April 11, 2022, the Ontario government's Bill 88, the Working for Workers Act, 2022 ("Bill 88"), received royal assent. Earlier this year, we wrote about Bill 88 on this blog, when it was still at second reading. In addition to amending the Employment Standards Act, 2000 (the "ESA") to require employers to have in place a written policy regarding electronic monitoring, Bill 88 introduces new penalties under Ontario's Occupational Health and Safety Act ("OHSA") and enacts new legislation referred to as the Digital Platform Workers' Rights Act, 2022 (the "Digital Act") to provide certain minimum entitlements and rights to workers in the gig economy, among other changes.
Below is a summary of key provisions introduced by Bill 88, along with an update on the upcoming minimum wage rate increase.
Minimum Wage Rate:
The Ontario government has announced that effective October 1, 2022 the general minimum wage rate will increase from $15 per hour to $15.50. Special minimum wages rates will also increase, as detailed in the announcement.
Written Policy on Electronic Monitoring
Pursuant to Bill 88, the ESA has been amended to require Ontario employers with 25 or more workers as of January 1 of any year to have a written policy in place with respect to electronic monitoring of employees by March 1 of that year (a "Policy").
The Policy must contain the following information:
- whether the employer electronically monitors employees and if so, a description of how and in what circumstances the employer may electronically monitor employees, and the purposes for which information obtained through electronic monitoring may be used by the employer;
- the date the Policy was prepared and the date any changes were made to the Policy; and
- such other information as may be prescribed (note that there are not yet any regulations to Bill 88).
Notably for employers, Bill 88 makes clear that the new provisions respecting electronic monitoring policies do not affect or limit an employer's ability to use information obtained through electronic monitoring of their employees.
On a transitional basis, employers with 25 or more employees as of January, 2022 have until October 11, 2022 to put their Policy in place.
A copy of the Policy must be provided to employees within 30 days from the day the employer is required to have the policy in place or, if an existing policy is changed, within 30 days of the changes being made. New hires must be provided with the Policy within 30 days of their start date (or, if later, 30 days from the day the employer is required to have a Policy in place). The Policy must be retained for 3 years after it ceases to be in effect.
Employers should begin to review their electronic monitoring practices and be prepared to develop a written policy which meets the requirements described above. While the relevant amendments to the ESA do not define "electronic monitoring", organizational monitoring methods such as keystroke tracking, GPS devices, and company mobile device monitoring should be considered when preparing the appropriate policy. We will continue to monitor for any regulations or guidelines setting our further requirements in respect of electronic monitoring policies and will provide updates once available. For further information on electronic monitoring policies, please also see our earlier blog post.
Certain Business and IT Consultants Not Subject to ESA
Bill 88 amends Section 3 of the ESA to make clear that as of January 1, 2023, the ESA will not apply to certain business and information technology consultants, defined in the legislation as follows (each, a "Consultant"):
- "business consultant" means an individual who provides advice or services to a business or organization in respect of its performance, including advice or services in respect of the operations, profitability, management, structure, processes, finances, accounting, procurements, human resources, environmental impacts, marketing, risk management, compliance or strategy of the business or organization; and
- "information technology consultant" means an individual who provides advice or services to a business or organization in respect of its information technology systems, including advice about or services in respect of planning, designing, analyzing, documenting, configuring, developing, testing and installing the business or organization's information technology systems.
To be exempt from the ESA, a Consultant must meet the following criteria:
- provide services through (i) a corporation of which they are a director or a shareholder party to a unanimous shareholder agreement or (ii) a sole proprietorship of which the Consultant is the sole proprietor;
- be subject to an agreement for services that sets out when the consultant will be paid and the amount the consultant will be paid, which must be greater than $60 per hour (excluding bonuses, commissions, expenses and travelling allowances and benefits) and must be expressed as an hourly rate; and
- be paid the amount set out in the above agreement.
Further requirements may be prescribed in the future and as such, we are continuing to monitor for regulations and/or guidelines.
Employers will need to be vigilant when retaining business and IT consultants as independent contractors, to ensure that they fall under the criteria set out in the ESA. Failure to do so may result in misclassification liability under the ESA. Employers should also ensure that going forward any independent contractor agreements in respect of business and IT consultants (including any templates) set out a payment schedule and provide for payment of an hourly rate of at least $60 per hour as described above.
Protections for Workers in Response to Opioid Use
Bill 88 amends the OHSA to require employers to provide naloxone kits if they become aware, or ought reasonably to be aware, that there may be a risk of a worker having an opioid overdose at a workplace where that worker performs work for the employer. In these circumstances (and such other circumstances as may be prescribed in the future), the employer must also comply with requirements regarding training and the use and maintenance of naloxone kits. These OHSA amendments are not yet effective and will come into force on a date to be proclaimed.
Naloxone is an opioid antidote which, if administered in response to an opioid overdose, may reverse the overdose.
The Ontario government has identified construction sites, bars, and nightclubs as high risk settings which are being most impacted by the opioid epidemic. Employers in these sectors should be particularly aware of this elevated risk, monitor their workforce for any signs of opioid dependency, and be prepared to have naloxone kits available and training in place where/when required.
Increased Penalties under OHSA
Effective July 1, 2022, penalties for convictions under OHSA will increase significantly as a result of Bill 88. Specifically:
- the maximum fine under OHSA for individuals who contravene or fail to comply with the act has increased from $100,000 to $500,000; and
- there is a new penalty for directors and officers who contravene or fail to comply with their duty to take reasonable care to ensure that the corporation complies with OHSA. Directors and officers in breach of this duty are now liable for a maximum fine of $1,500,000, imprisonment for up to 12 months, or both.
OHSA now also includes a list of aggravating factors which must be considered by the Ministry of Labour when determining a penalty including, for example, whether the individual disregarded the order of an inspector, has a prior record of non-compliance with OHSA, or the offence was committed recklessly, resulted in death or serious injury of a worker, or was motivated by a desire to increase revenue or decrease costs. Conduct following the offence may also be considered, such as whether the individual attempts to conceal the offence from the Ministry of Labour or fails to cooperate with an investigation.
The limitation period for laying charges under OHSA has been extended from one to two years from the date of the order.
Going forward, directors and officers of a corporation, along with managers and supervisors, should continue to ensure that their training is up to date and current in order that they may demonstrate that they are knowledgeable of workplace occupational health and safety policies (e.g. the company's workplace violence and harassment policy and corresponding programs).
Digital Platform Workers' Rights Act, 2022: New Rights for Gig Workers
The new Digital Act has been created to provide rights for workers who perform digital platform work. Individuals in this industry are commonly engaged as independent contractors and, where characterized as such, do not enjoy the rights and protections afforded to employees under the ESA. The Act is aimed at establishing minimum rights for these workers.
Digital platform work is defined under the Act as "the provision of payment ride share, delivery, courier or other prescribed services by workers who are offered work assignments by an operator through the use of a digital platform", commonly referred to as "gig work."
The new rights for gig workers established under the Act include the right to information, recurring pay periods and pay days, minimum wage as payable under the ESA, notice of removal of a digital platform (as well as an explanation as to why), and rights to resolve work-related disputes and be free from reprisal (among others).
The Act will come into force on a date to be named by the Lieutenant Governor (meaning it is not yet effective).
Corporations who engage workers who perform digital platform work should become familiar with the rights created under the Act, and as well as the relevant rules, processes and requirements set out therein with respect to record keeping and enforcement.
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.