The Act provides that part-time, temporary, and casual employees and agency workers must receive the same rate of pay as full-time employees when performing:

 

However, employers remain free to make distinctions in pay rates based on other grounds, such as seniority, qualifications and certification, quantity or quality of work, or any other grounds other than gender, employment status (i.e. full-time/part-time/casual status). We are relieved to see that the Ministry of Labour recently clarified that distinctions based on accumulated hours worked remains a permissible basis for distinctions in pay and we would encourage employers to move towards wage grids based on accumulated hours of work as this will, in many cases, be the only permissible manner of rewarding the significant time and dedication that full-time workers contribute.

 

Employees will have the right to request a review of their wages (with protection from reprisal) and to receive a written response from their employer.

 

These rules would come into effect on April 1, 2018 , subject to transitional language granting some relief to employers who have collective agreements in place before April 1, 2018 with conflicting wage provisions. For employers in those circumstances, the Equal Pay requirements will come into effect on the earlier of the date that the applicable collective agreement expires or January 1, 2020.

 

Employers should be reviewing their classifications, job descriptions and wage grids to ensure that they accurately reflect the work being performed and properly reward hours of work. These changes will increase the costs associated with relief and part-time staff and DS Sector employers may wish to consider alternatives staffing approaches.

Effective April 1, 2018, temporary help agency ("temp agency") workers (also known as "assignment employees") will need to be paid the equivalent of what regular staff are paid, resulting in a significant increase in the cost of using temp agency workers.

In addition, effective January 1, 2018, a minimum of 1-week’s notice or payment in lieu will be required for the early termination of a temp agency work assignment, which cost we expect temp agencies will pass along to their DS Sector clients.

The clients of temp agencies will also be subject to new information provision and record keeping requirements when it comes to the temp workers assigned to them by temp agencies.

Finally, DS Sector employers that employ or pay respite providers to perform work assignments with families and individuals in the community should be aware of the risk of being deemed to be a “temporary help agency” for the purposes of the ESA. Where that designation applies a wide range of obligations are triggered under the ESA.

Our clients tell us that temp agencies are already reaching out to communicate anticipated cost increases. DS Sector employers will need to carefully consider the use of temp agencies moving forward and consider alternatives to staffing vacancies.

A number of modifications to the scheduling practices of employers will be mandated by the new legislation.

 

These changes do not come into effect until January 1, 2019 at the earliest (and are subject to transitional provisions for employers subject to collective agreements). It remains to be seen whether any exemptions will apply for various types of employees, including supervisors, managers, residential care workers, or domestic workers. Regulations related to exemptions are currently under review.

These changes have implications for the flexible scheduling of staff and DS Sector employers and may wish to consider alternatives staffing approaches, such as dedicated full-time floaters.

The Act includes provisions that increase vacation entitlements for all employees with 5 or more years of service from the current two weeks per year (with vacation pay in the amount of 4% of wages) to three per year (with vacation pay in the amount of 6% of wages). 

 

The government has also amended the formula for calculating public holiday pay to clarify that employees are entitled to their "average daily wage" calculated based on the total wages earned in the payroll period prior to the public holiday, divided by the number of days actually worked during that pay roll period. While this is unlikely to change things for employees who typically work five days per week, it will have a profound impact on public holiday related costs for casual and part-time employees who work less than 5 days per week.

 

Both of these changes come into effect on January 1, 2018, and many employers are still scrambling to put in place payroll practices to capture these changes.

Effective January 1, 2018, all workplaces will now be subject to the 10-day personal emergency leave entitlement, with the first 2 of those days being fully paid (i.e. whatever pay would have been received had the employee worked the shift in question). For the first time, this will mean that families and other small employers are subject to paid Personal Emergency Leave ("PEL") requirements.

 

In addition, employers will be prohibited from requiring (but not necessarily requesting) medical certificates in relation to PEL, with negative implications for managing attendance and absenteeism.

 

The Act does not address concerns related to the accumulation of paid PEL for employees who work only intermittently. This is very concerning for employers who rely on casual and relief employees. The Act will also serve to incentivize employees to seek out multiple jobs in order to capitalize on paid personal emergency leave from multiple employers. These changes will increase the costs associated with relief and part-time staff and DS Sector employers may wish to consider alternatives staffing approaches, such as dedicated full-time floaters.

 

For employers who already offer paid leave for various purposes, such as "personal days", "sick leave" and "bereavement leave", the case law suggests that an employer may be permitted to count such paid leaves against PEL entitlements, where the purposes and terms on which the leave and PEL are provided are consistent. We recommend that employers look at their current leave practices, make changes to clearly demonstrate that they are inclusive of and/or count against PEL, and where that is not possible due to their incorporation in a collective agreement, approach the attribution of bargained leaves towards PEL on a case by case basis.

Bill 148, as amended, provides for generous new leaves and increases to existing leaves, including:

 

 

All of these various leaves come with job protection (meaning that an employee must be returned to their pre-leave job at the end of the leave, or if that job no longer exists, a comparable job) and benefit continuance (meaning that an employer must continue to pay their share of benefit premiums for benefits during the leave, so long as the employee pays their share).

Simulated Work



Existing language under the ESA provides that persons who perform work in a "simulated job or workplace" for the "primary purpose of rehabilitation" are not employees for the purposes of the ESA and therefore are not entitled to the minimum wage or other benefits and protections associated with employment under the ESA. There is no case law confirming that this exemption applies to DS Sector sheltered work programs or social enterprises, but it is nonetheless the principal defense advanced by agencies in human rights and Ministry of Labour complaints related to social enterprises and other operations in which persons supported perform work-like activities for less than the minimum wage. 

 

This exemption will be removed from the ESA effective January 1, 2019, thereby adding the force of law to the Ministry of Community and Social Service’s (“MCSS”) “Supporting the Transition to Greater Inclusion: Guidelines for Impacted Programs” (the “Transition Guidelines”) introduced in September 2016, requiring agencies to transition away from sheltered work.

 

On the Job Training

 

The ESA previously stated that any person who receives training from an employer is an employee unless:

 

Bill 148 eliminated (2) above. Practically speaking, this means that now all “on-the-job” trainees will need to receive at least the minimum wage. However, experiential learning programs (such as co-ops) provided by high-schools, colleges, and universities will continue to be exempt.

 

This appears to go one-step further than the MCSS Transition Guidelines, significantly restricting the types of training programs that DS Sector agencies are permitted to operate for the benefit of persons supported. As agencies work towards building alternative programming, it will be important to keep in mind these changes.

Bill 148 amended the Labour Relations Act, and effective January 1, 2018, introduced card-based certification (certification without a vote) for employees in a number of industries, including the temporary help agency industry and the "home care and community services industry". Non-union agencies receiving funding from the Ministry of Health and Long-term Care for home care and community service supports should be aware of the increased risk of unionization.

 

The government will also introduce a number of other changes which will make it easier for unions to certify employers, including a new process whereby a union can apply to receive the names, contact information and other details about employees of an employer upon demonstrating that they have the support (signed union cards) of 20% of an employer’s employees.

 

All non-union organizations should be aware of these changes and the increased risk of being certified. This increased risk makes the manner of communicating and rolling out changes in relation to Bill 148 all the more important. Breaches of the ESA, perceived unfairness or takeaways can all breed discontent and increase the likelihood of union organizing.

While the Act has been passed, certain aspects of its application remain unclear, not the least in relation to various exemptions that are currently under review. Until January 1, 2018, the Ministry of Labour is accepting submissions and feedback related to the various regulations under the ESA that currently exempt certain groups of employees from such things as overtime, hours of work and other provisions of the ESA.

 

Numerous stakeholders from the DS Sector have participated in this review process and filed submissions in relation to these exemptions. We anticipate that regulatory changes will be forthcoming in the weeks and months that follow.

Finally, in response to pressure from the Sector, the Government has announced that new funding, for both agencies and families receiving Passport and SSAH, will be released in the new year. It remains to be seen how this funding will be distributed and whether the funding increases will be sufficient to offset these new costs.

 

PooranLaw will keep you apprised of any developments as they arise.

Topic: ESA Audit Preparedness: Your Step-by-Step Guide to Compliance in the DS Sector

Date: Jan 11, 2018

Time: 11:00 a.m. 

Registration: Click here

Details:

This topical and timely webinar provides as a step-by-step guide to ESA audit preparedness. Labour and employment lawyers, Cheryl Wiles Pooran and Justin Amaral, will share their insights on how best to achieve compliance, including: 

After registering, you will receive a confirmation email containing information about joining the webinar.