New Employee Rights under Employment Standards Act

Written on behalf of Peter McSherry
Workplace reform
Background Shape/Fill/Blue Shaded

New Employee Statutory Rights

The government of Ontario passed significant amendments to the Employment Standards Act with the introduction of Bill 148, the Fair Workplaces, Better Jobs Act, 2017 on November 22, 2017. Most changes will take effect on January 1, 2018 and will affect provincially regulated employers province-wide.

What’s New

The highlights of the amendments are as follows:

  1. Equal pay is required for equal work for casual, part-time and seasonal workers;
  2. Workers who are assigned by a temporary help agency must be paid at the same rate as permanent employees doing the same tasks;
  3. Minimum paid vacation after five years of employment is increased from two weeks to three weeks;
  4. The entitlement to an unpaid leave to attend to the needs of a critically ill family member;
  5. The minimum wage has been increased to $14 per hour as of January 1, 2018 and to $15 per hour as of January 1, 2019. This a fairly dramatic increase from the present minimum which is set at $11.40 per hour;
  6. In a situation where a worker or their child has been subjected to acts of threats of domestic or sexual violence, an entitlement is provided of a leave of absence for up to 17 weeks, with no right of termination allowed. The first 5 days of this leave is paid.
  7. Emergency personal leave of up to 10 days a year is now allowed, of which at least 2 days must be fully paid provided that the employee has worked for one week or longer with the company. The present law, pre-amendment, allowed for 10 personal days with an employer having greater than 50 employees. The new law applies to all employers. Significantly, a medical note need not be provided.
  8. Should an employee’s shift be canceled within 48 hours of its set commencement time, three hours pay must still be made. This will be effective as of January 1, 2019.
  9. Parental leave following the birth of a child or the arrival of a newly adopted child is increased from 37 weeks to 63 weeks;
  10. Employers are forbidden from classifying employees as independent contractors. In cases of dispute, the obligation to prove the status of “non-employee” is upon the employer. This revision became law on November 27, 2017.
  11. Companies cannot mandate employees wear a shoe with an elevated heel, except persons employed in the entertainment or advertising business. This also became law on November 27, 2017.

The Enforcement Process

The good news is that the Province appears to be serious about the enforcement process. It has committed to hiring up to 175 employment standards officers and to resolve all claims within 90 days. It has also stated its intent to inspect one in every ten workplaces every year.

Commentary on the Revisions to the Employment Standards Act

Clearly, the intent of all the amendments is the well-intended protection of the interests of employees.

One might argue that certain of the new provisions are not required, given protective human rights laws which presently do offer remedies for those required to offer medical or other care to a family member in need. Nonetheless, it is likely better to be more apparent protections than not.

One particularly interesting revision is the section dealing with high heels in the workplace. The Human Rights Commission has recently stated its position against the requirement of servers in the hospitality industry dressing provocatively, which is likely the intent of this amendment.

A further term outlawing the assertion of employees as “independent contractors” is also worthy of note. For many years, this classification has been used, primarily to avoid tax at source and  to evade statutory obligations such as vacation pay, E.I and C.P.P deductions, overtime and severance payments. The employee’s incentive has been one intending to pay income tax as an independent business person and claim deductions not otherwise attainable.

When challenged by Canada Revenue Agency or the provincial Ministry or even the employee, these cases typically result in mutual disaster. It is a difficult test to establish status as an independent contractor. The failure to do so will see vivid consequences, such as an assessment against the employer of missed source deductions for tax, E.I. and C.P.P and liability for statutory entitlements such as vacation pay, overtime, vacation pay and statutory holidays and termination pay. The employee may see his income tax returns retroactively re-assessed and penalties assessed. This reform is long overdue.

Any Questions ?

If you are seeking advice on the new employment laws in Ontario, contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation.