On June 7, 2018, the Ontario Progressive Conservatives were elected. Since that day, the provincial government has been moving swiftly to pass and amend laws.
For that reason, it is important to be informed about and prepared for any upcoming shifts in Ontario’s legal landscape. One set of important legal changes to Ontario’s employment laws will be delivered through Bill 47, which introduced the Making Ontario Open for Business Act (“MOBA”).
Where are we and where are we going?
In 2015, the Ontario Ministry of Labour published a report as part of the Changing Workplaces Review. The report studied precarious work arrangements and put forward suggestions in an effort to create decent working conditions and ensure compliance with existing laws. In November 2017, in response to the report, the former government amended the Employment Standards Act (“ESA”) by passing the Fair Workplaces, Better Jobs Act (“FWA”) into law. The FWA significantly changed Ontario’s employment laws.
The bulk of legal amendments were aimed at bettering working conditions. Among other changes, the minimum wage was increased, “equal pay for equal work” became mandatory, and employees were given the right to take up to ten days of job-protected leave. Many employees and progressively minded employers lauded these changes. However, the amendments did not escape criticism.
Some criticized the former government for not going far enough in the fight to protect workers. Others criticized the government for making changes that could only be upheld by sacrificing the prosperity and viability of businesses. With Bill 47, the new Progressive Conservative government has made its perspective known. Business growth is the top priority. Under MOBA, most of the amendments implemented under the FWA will be rolled back. Below is a brief summary of the key changes.
Upcoming changes to the Employment Standards Act
The first set of changes to the ESA will come into effect on January 1, 2019.
Equal Pay for Equal Work: Differentiation in pay on the basis of sex is and will remain prohibited. However, MOBA permits employers to differentiate pay on the basis of “employment status” and “assignment employee status”. In other words, the current version of the ESA requires employers to pay part-time, casual, temporary, and assigned ‘agency’ workers wages equal to their full-time counterparts if they perform substantially the same kind of work. The upcoming amendments will eliminate these equal pay requirements.
Minimum Wage: The general minimum wage increased to $14 per hour on January 1, 2018 and was set to increase to $15 on January 1, 2019. The amendments under MOBA will lock the minimum wage at $14 per hour. The minimum wage will not increase until at least October 2020, and any further increases will be tied to inflation.
Absences: Under the current version of the ESA, employees are permitted to take personal emergency leave. In a nutshell, an employee is entitled to a leave of absence of up to ten days to deal with personal illness, injury, or medical emergency. Employees may also use their personal emergency leave to attend to a family member who is ill or injured or to attend the funeral of a family member. The first two days of personal emergency leave are paid. The personal emergency leave provisions will be replaced with new unpaid leaves. The first leave is a three-day sick leave for “personal illness, injury or medical emergency”. The second is a two-day bereavement leave for the death of family members. Lastly, there will be a three-day family responsibility leave for “illness, injury, medical emergency” or “urgent matter” relating to a family member. The last amendment, and perhaps the most controversial one, is that employers will now be able to request a medical note to support a request for the leaves described above.
Scheduling and the “Three-Hour Rule”: MOBA only leaves one scheduling provision in place: the “three-hour rule”. According to this rule, if an employee who regularly works more than three hours a day is required to report to work but works less than three hours, despite being available to work longer, the employer shall pay the employee wages equal to three hours. Several impactful scheduling provisions are being repealed and, as such, employees will no longer be entitled to:
- refuse requests or demands to work or to be on-call on a day that an employee is not scheduled with less than 96 hours’ notice (i.e. your employee may ask you to report to work with less than 96 hours’ notice);
- receive three hours’ pay if a scheduled shift or an on-call shift is cancelled with less than 48 hours’ notice.
Misclassification of Employees: Under the current version of the ESA, employers are required to prove that an individual is not an employee in the event that a dispute concerning an individual’s employment status arises. In other words, if a worker claims that they are an employee and they sue the employer for misclassifying their employment status, the employer bears the burden of proving that the individual is, in fact, an independent contractor. This requirement will be eliminated.
How to assist employees or your co-workers with the transition?
As you can see, the amendments to the ESA favour employers. To avoid alienating your employees and to protect your fellow co-workers, information concerning the legislative changes should be openly discussed. Consider distributing or requesting that your employer distribute a company-wide notice or newsletter describing the legal changes. Where possible, an information session should be held for key management staff.