On June 1, 2017, Bill 148 the Fair Workplaces, Better Jobs Act, 2017 passed its first reading in the House. Bill 148 will make several changes to the Employment Standards Act, 2000 (“ESA”) that go beyond just an increase to minimum wage. Employers need to be aware of these changes and take all appropriate steps to ensure their employment contracts and policies are compliant with Bill 148 when it is passed.

This article seeks to shed light on some of the major changes Bill 148 will have on the ESA. It is important that employers consult their own counsel to ensure that their policies are consistent with all legal requirements.

Three-Hour Rule

Section 5(7) of Ontario Regulation 285/01 currently holds that where an employee:

(a) regularly works more than three hours a day;
(b) is required to present himself or herself for work; and
(c) works less than three hours,
an employer is required to pay their employee for three hours of work at the rate of minimum wage or at their regular rate of pay for the time worked, whichever is higher.

For example, if an employee makes $15 an hour and is called in to work for two hours, the employer will be required to pay the employee more. If the minimum wage is at $11.40 an hour, the employer must pay the employee at least $34.20 ($11.40 x 3 hours) to meet their obligations under the ESA.

Bill 148 will change this three-hour rule to provide that an employer must pay an employee their “regular rate for three hours of work” if the above criteria are met. Employers should review their scheduling practices to avoid the application of the three-hour rule.

Equal Pay for Equal Work

Bill 148 will make two significant changes with respect to equal pay for equal work.

Firstly, employers will no longer be able to scale an employee’s wage based on employment status. A part-time employee in the same position as a full-time employee and completing substantially the same work is entitled to the same wage as the full-time employee.

If an employer wishes to maintain different levels of pay for their employees, they must justify their rates. A seniority or merit based system that are consistent with the Human Rights Code are appropriate justifications.

Secondly, employees who are hired through temporary employment agencies will be entitled to the same compensation as their counterparts who perform “substantially the same work” and were not hired through a temporary employment agencies.

Employees hired through temporary employment agencies will be provided additional protections. Workers who are assigned to a position for a term that is to last for three months or more and the assignment ends before the expected term, are entitled to one week of notice or pay in lieu. Alternatively, a work assignment lasting at least one week can be offered to the employee.

Personal Emergency Leave

Bill 148 will expand personal emergency leave days to all employees who are subject to the Employment Standards Act. In addition, two of the personal emergency leave days are required to be paid.

Employees, upon an employer’s request, will be required to show evidence “reasonable in the circumstances” justifying the need for the personal emergency leave day. However, Bill 148 prohibits an employer from asking the employee for a doctor’s note. It is unclear what level of evidence will be sufficient.

Work Scheduling

Employees who have been employed with the same employer for three months or more may apply to the employer to change their work schedule or change locations. The employer is required to consider this request and discuss it with the employee. If the request is denied, the employer must provide reasons explaining the denial.

It is unclear whether Bill 148 contemplates future legislation to review these decisions. If an employer’s decision is consistent with the Human Rights Code it remains to be seen how such a decision could be successfully appealed.

Child Death Leave

Bill 148 establishes a new leave of absence provision in the ESA.

If an employee’s child dies for any reason, the employee is entitled to take a leave of absence of 104 weeks. In addition, Bill 148 will increase the crime-related child death leave of absence entitlement from 52 weeks to 104 weeks.

Vacation with Pay

Bill 148 will increase the amount of vacation time, where an employee works for an employer for five years, to three weeks per year.

Conclusion

These are only some of the changes that Bill 148 will introduce to the ESA. Bill 148 will also make various amendments to the Labour Relations Act, 1995.

Although Bill 148 has not yet been made law, it is important to be aware of how it will impact your business in the future. The legal team at Daniel & Partners is well-equipped to advise and assist you with your employment law needs. Please contact us today.

Blog post written by Nick Baxter, Articling Student.

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